During a recent Q&A session on the Department of Labor’s semiannual regulatory agenda, Deputy Administrator of the Wage and Hour Division (WHD) Nancy Leppink highlighted the agency’s plans to revise the Fair Labor Standards Act’s (FLSA) recordkeeping requirements, and the rules governing the employment of workers who provide companionship services. If approved and implemented, both of these regulatory measures would result in significant changes.

With respect to the proposed change in recordkeeping requirements, Leppink explained that the WHD expects “this update to promote transparency and encourage greater levels of compliance by employers. We also expect the regulation to enhance awareness among workers of their status as employees or independent contractors, as well as enhance awareness of employee rights, and entitlements to minimum wage and overtime pay.” According to a fact sheet on this proposal, such a rule would require:

covered employers to notify workers of their rights under the FLSA, and to provide information regarding hours worked and wage computation. Any employers that seek to exclude workers from the FLSA’s coverage will be required to perform a classification analysis, disclose that analysis to the worker, and retain that analysis to give to WHD enforcement personnel who might request it. The proposal will also address burdens of proof when employers fail to comply with records and notice requirements.

During the Q&A session Leppink also noted that the DOL is “working to develop a proposal that will address the recordkeeping on live-in domestic employees and industrial homeworkers.”

In addition, the DOL plans to review the FLSA regulations as they apply to home service workers. As stated in a DOL fact sheet on this proposal, the agency plans to “update the companionship services regulations in order to clarify when domestic service employees, who provide companionship services to the aged or infirm, are exempt from the minimum wage and overtime provisions of the FLSA.” As part of this rulemaking effort, the agency plans to consider “whether the current exemption of companions working for a party other than the family or household using the companionship services is consistent with the status of a companion in light of significant changes in the home care industry.” In addition, the DOL intends “to address the scope of training required to render a worker ‘trained personnel’ excluded from the companionship exemption, and the amount of household work that may be performed by the worker without losing the companionship exemption.”

A notice of proposed rulemaking (NPRM) on the recordkeeping requirements is scheduled to be issued by August 2010. A NPRM on the application of the FLSA to domestic service workers is considered a longer-term project, and will not likely be issued until October 2011.