Houseparents & the Fair Labor Standards Act (FLSA)
By Mike Hyde, The Webmaster
I recently discovered an opinion letter on the Department of Labor (DOL) website that relates directly to Houseparents and residential childcare workers. Before I continue any further let me make this disclaimer: I am not an attorney and this is not legal advice. It is simply a layman’s commentary on a DOL opinion. Additionally, the DOL looks at each incident independently so this may not apply to you or your facility at all. I am simply going to make some generalizations based upon what I believe their opinion letter says.
This letter addresses many of the issues I have seen brought up by different people in my forum and questions asked directly to me by others. This letter specifically addresses the issue of single houseparents and their standing under FLSA.
According to the letter ”the enterprise provisions of the FLSA do not cover private nonprofit institutions providing care for neglected and dependent children, if such institution is not operated in conjunction with a hospital, residential care facility, school or a commercial enterprise operated for a business purpose.” Which basically means if you work for a non-profit organization you probably are not covered by FLSA. I think this would include the vast majority of Christian and other religious organizations as well as several non-religious organizations.
It is possible that you could be covered under the individual provision provided you are involved in interstate commerce which is defined as, “ the production of goods for commerce or activities closely related and directly essential to the production of goods for commerce. Examples of such interstate commerce activities include making/receiving interstate telephone calls, shipping materials to another state and transporting persons or property to another state.”
This provision has been very confusing for me as well as others. I have always wondered if one interstate phone call covered me under FLSA? I think this letter answers the question. “As a practical matter, the WHD will not assert that an employee who on isolated occasions spends an insubstantial amount of time performing individually covered work is individually covered by the FLSA. Individual coverage will not be asserted for house parents or other employees who occasionally devote insubstantial amounts of time to:
- Receiving/making interstate telephone calls;
- Receiving/sending interstate mail or electronic communications;
- Making bookkeeping entries related to interstate commerce.”
I suppose now the question is “what is insubstantial?” But I imagine it covers most of us.
It is also very clear that calling houseparents managers or supervisors does not exempt them as Executives. “Since, ….., most of the childcare staff members do not supervise other employees, the childcare staff members at issue would not meet the executive exemption under either the old or revised rule.”
Nor are we covered under the “Learned Professional Exemption”, “Since there is no information provided that shows the work performed by the childcare staff members requires knowledge of an advanced type in a field of science or learning, which is customarily acquired by a prolonged course of specialized intellectual instruction, we believe the childcare staff members at issue do not qualify for the learned professional exemption under either the old or revised rule. Finally Single Houseparents are not covered by the “nonprofit educational institution House Parent Exemption” - “we conclude that the section 13(b)(24) exemption would not apply to unmarried individuals. Any changes to the section 13(b)(24) requirements, such as allowing for unmarried individuals who perform duties similar to those of house parents to be eligible for the overtime pay exemption, would be a matter for legislative determination by the Congress.”
Finally Single Houseparents are not covered by the “nonprofit educational institution House Parent Exemption” - “we conclude that the section 13(b)(24) exemption would not apply to unmarried individuals. Any changes to the section 13(b)(24) requirements, such as allowing for unmarried individuals who perform duties similar to those of house parents to be eligible for the overtime pay exemption, would be a matter for legislative determination by the Congress.”
Here is the summary of the letter: “In summary, the enterprise provisions of the FLSA do not cover private nonprofit institutions providing care for neglected and dependent children, if such institution is not operated in conjunction with a hospital, residential care facility, school or a commercial enterprise operated for a business purpose. If a member organization of the Name* is not covered on an enterprise basis, then it would need to determine if individual coverage applies to its employees. Only if enterprise or individual coverage exists should the employer ascertain whether an exemption under the FLSA is applicable. As discussed above, provided enterprise or individual coverage exists, it is our opinion that neither the executive nor the professional exemption would apply to the childcare staff members who work as house parents. In addition, the section 13(b)(24) exemption from overtime pay would be inapplicable to childcare staff members who, although they perform duties similar to those of house parents, are not married.”
I have been in the company of several houseparents that complained about their salary, I have even done it myself. Something to the extent, “This sucks, I don’t even make minimum wage.” However I can honestly say that in every houseparenting position I have ever accepted, the money in my paycheck equaled what the administration that hired me said it would. In fact I can only think of one other houseparent where it wasn’t and in their case it was corrected within weeks and made retroactive. I am a firm believer in doing better for yourself when possible and I have seen wages and benefits raise considerably in the 9 years I have been a houseparent, and that is great.
I am not sure how to end this entry so I will end with this. Houseparents may have many things to complain about, but if you are being paid what they said you would be paid when you were hired, salary is not one of them. I also have another blog entry on Houseparent Salaries.
I have posted the complete text of the letter HERE
Text in Quotation marks and italics are taken directly from DOL Opinion Letter FLSA2005-52 dated: November 14, 2005 which is part of the public domain. All other parts of this article is copyright 2006 by The Houseparent Network