August 10, 2020

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August 07, 2020

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Caretakers’ Own Homes Were “Private Homes,” Rendering Them Exempt Companions

Though the USDOL’s new rule regarding overtime-eligibility for home care workers is currently in force, pending appeal, litigation continues over the prior rule. A new appellate ruling addresses the scope of the term “private home” for purposes of the prior rule, clarifying that the former exemption applies to caregiver work in the private homes of those providing care, not just those receiving it. Fezard v. United Cerebral Palsy of Cent. Ark., 2016 U.S. App. LEXIS 27 (8th Cir. 2016).

Fezard concerned companion services provided by employees of United Cerebral Palsy (UCP) typically provided “at each client’s place of residence,” i.e. in the client’s private home. Plaintiffs’ clients “instead of living on their own or with family members . . . live[d] with the UCP employees who provide their care . . . [who had] opened their homes and invited their clients to live as roommates or surrogate family members.” Observing that most prior cases adjudicating the “private home” inquiry were inapplicable insofar as they mostly addressed a “comparison . . . between the employer and the client—the employer’s commercial care facility or the client’s traditional single-family residence,” the court in Fezard reduced the legal inquiry to a single question: Does the employer own or control the home?

Answering that question as applied to the case at bar, the Court noted that:

[E]very client lived in a dwelling that was private in relation to UCP. UCP did not exert control over the room in which a client lived, the rent paid, or any other term or condition of the living arrangement. UCP did not require a client to live in a specific dwelling unit in order to receive services. Further, while UCP may have acted to facilitate a connection between a client and the caregiver, UCP’s involvement was limited to making the connection. Finally, UCP had no ability to evict any client if the client ceased to use UCP’s services.

Given these factors demonstrating the absence of UCP’s control over the living arrangement, the Court concluded the private home prong of the exemption test was satisfied.

Industry employers must review the new rule’s definitions of companion and domestic service, and analyze their workforces and compliance accordingly.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 14


About this Author

Noel Tripp Principal Employment lawyer at Jackson Lewis Law Firm

Noel P. Tripp is a Principal in the Long Island, New York, office of Jackson Lewis P.C. Since joining Jackson Lewis as a summer associate in May 2005, he has practiced exclusively in employment law.

Mr. Tripp has been involved in matters pending before federal and state courts and administrative agencies covering the gamut of employment-related matters from discrimination and workplace harassment to wage/hour disputes and affirmative-action compliance. His principal focus is the defense of class and collective action...