Yes, provided certain requirements are met. Under section 3(m) of the FLSA, an employer may take credit toward wages for the reasonable cost or fair value of lodging provided to an employee under certain circumstances. This credit is addressed in the Department’s guidance regarding the application of the FLSA to shared living arrangements, available at http://www.dol.gov/whd/homecare/shared_living.htm, and will be described in more detail in an additional forthcoming guidance document. Note that—as explained in detail in the shared living guidance—it is a credit toward the minimum wage obligation; it does not count toward any overtime obligation.
In a situation in which there is joint employment, for example between a private (for-profit or non-profit) agency and a consumer, the credit applies regardless of which employer pays for the housing. Therefore, as long as the consumer’s funds (whether private or received through public assistance), rather than the worker’s, are used to pay for the worker’s housing, the credit may be applicable even if the cash wages are paid by the agency.
Note that the credit may not exceed the actual cost to the employer of the housing, even if that cost is below market value, and that it must be calculated as a reasonable portion of the total cost of the lodging (e.g., one half of the rent of an apartment the consumer and worker share equally, or less than one half if the worker has a smaller private living space and/or less access to common areas).
Although agencies might not typically consider themselves to jointly employ home care workers along with consumers, for purposes of the FLSA, consumers will often be joint employers of the workers who provide them assistance. In the home care context, given the nature of the work, the consumer for whom services are performed (or the consumer’s family or household, including a guardian) is very often a joint employer of the worker. Among other possible indications of employment status, if a consumer (or the consumer’s family or household) exercises control over the staff person’s work, such as by making decisions about who to hire, whether to fire, what the worker’s schedule will be, what tasks the worker will perform and when, or how the worker will perform those tasks, the consumer is likely an employer under the FLSA test.
October 2018
Tags: FLSA Compliance