Request By:
Mr. Mark L. Miller
Labor Standards Investigator
Division of Labor Standards
Department of Labor
U. S. 127 S
Frankfort, Kentucky 40601
Opinion
Opinion By: ROBERT F. STEPHENS, ATTORNEY GENERAL; Martin Glazer, Assistant Attorney General
You have requested an opinion on whether babysitting and companion services are included or excluded from the Kentucky Minimum Wage Law. You specifically ask:
"Are employees engaged in providing companionship services who are employed by an employer or agency other than the family or household using their services exempt from KRS 337.275 (1) and KRS 337.285, the minimum wage and overtime pay requirements respectively, by virtue of KRS 337.010 (2)(a)(vii)?"
We have delayed reply until we were furnished additional information as to the factual nature of the type of service involved and other pertinent data.
It appears from this information that a company sends out persons that either it recruits or finds to the houses of persons desiring babysitters and companions to the sick and elderly. The data does not clearly disclose how these persons are paid, either directly by the homeowner or by the supplying company, what hours they work or who decides the number of hours and whether the babysitters or companions actually live in the home of the employer or homeowner.
In determining this issue, we must refer to certain pertinent statutes.
KRS 337.010 (2)(a) [as amended by SB 317, Chapter 340, Section 1, 1978 Acts of the General Assembly] defines "Employe" as:
". . . . any persons employed by or suffered or permitted to work for an employer, but shall not include:
* * *
(vii) Any individual employed as a babysitter in employer's home , or live-in companion to a sick, convalescing or elderly person whose principal duties do not include house-keeping." (Emphasis supplied)
Further, KRS 337.275 provides in part that with certain exceptions (not here pertinent) "every employer shall pay to each of his employes" certain wages. Likewise, KRS 337.285 provides in part that "No employer shall employ any of his employes for a work week longer than forty (40) hours . . ." unless overtime pay is paid.
The statutes presume that there must be an employer-employe relationship.
There does not appear to be any problem of interpretation where the employer is the homeowner who hires someone directly for babysitting duties or companion care.
However, the matter is complicated when a third party is involved in the process. Who is the employer - the homeowner or the company supplying the babysitter or companion?
In the case of the babysitter, this fact is important because the exclusion to the general requirement of payment of minimum wages or overtime pay is allowable only where the babysitter is employed in the home of the employer. If the employer is the supplying company and not the person for whom the babysitter sits, no exclusion is permitted.
The Department of Labor has provided several tests for determining employer-employe relationships in Regulation 803 KAR 1:005. Section 4, such as: Does the employer control the work to be done and how it shall be performed and who pays the employe? No single factor shall control, but all conditions must be considered together.
If X company hires the babysitter, pays the wages and receives a fee from the homeowner (which is greater than the employe's wages), decides what hours the employe works, and how much he is paid, X company is the employer, and the employe does not babysit in the employer's home but in the home of the employer's client or customer. There, the exclusion does not apply.
But, if X company is merely a broker, a properly licensed private employment agency who merely refers babysitters to employing homeowners, has no control over wages, hours worked, nor pays the employe, the exclusion can apply to the wages of the employe because there the employer is the householder.
There is a different situation in the case of the companion to the sick or elderly person. He need not work in the home of the employer to be excluded from minimum wage scales. He need only live in the home of the person to whom he is the companion. His employer may live elsewhere.
Apparently, the legislature distinguished between the requirements of the babysitter and the companion to the aged and sick. Only the householder employer could get the babysitter exclusion. Perhaps the rationale for the difference is that many aged persons or ill persons are unable to qualify as employers ; their physical condition might not permit them to negotiate and deal with an employe to be a companion. Someone else, the real employer, would be required to do so. An example:
Mary Jones has an ill and elderly mother who resides alone. Rather than place her mother in a nursing home or bring her mother to Mary's house, Mary hires a companion to live with Mary's mother, but Mary is the employer, not her mother. Here, the exemption would still apply, because the hired companion lives in with the sick and elderly person.
And, we can't see any legal distinction under the wording of the statute between an individual third party such as Mary Jones who hires the companion, or a corporation who furnishes such companion, even though the companion is the employe of the corporation, rather than an employe of the sick and elderly person.
But, to qualify, the employe must actually live in with the sick person. He cannot have a residence elsewhere and still qualify for the exemption. Merely staying with a sick person for 24 hours will not constitute "living-in". He must actually live in that house.
Although the federal wage and hour division has taken a similar attitude under their law, we do not decide as we do on that basis. There are differences in federal and state laws which makes comparisons undependable.
For example, under federal law, domestic service is covered for federal minimum wages if the domestic works 8 or more hours per week for one or more employers. Only casual babysitting and companion service is excluded as an exception to domestic service.
Under Kentucky law, domestic service is excluded unless there are two or more regular domestics in the house. Babysitting (not just casual) and companion service is excluded as a separate exemption (not as part of domestic service) .
In short, a babysitter must be employed in the employer's home to be excluded.
A companion to a sick and elderly person need not be the employe of the sick and elderly person, but must actually live in the same domicile that the sick and elderly person resides in. Merely staying 24 hours with that person will not constitute "living in".
We hope that these answers may give you guidance in determining these knotty questions - at least until a court can make a final decision under a proper set of facts.