September 17, 2015 - Labor & Employment and Long-Term Care News: Revised Home Care Regulations Enforcement Coming Soon
As we recently advised, the Court of Appeals for the District of Columbia overturned a lower court and upheld the Department of Labor’s (DOL’s) overtime pay requirements for home care workers which had been set to take effect on January 1, 2015. Under that new rule, third party employers, such as home care agencies, can no longer claim exemptions for workers providing companionship services or live-in domestic help. Consequently those employers must pay overtime to those workers.
The new regulations will take effect once the Court of Appeals issues its mandate—a technical term for a final order. The organizations challenging the regulations have asked the Court of Appeals to delay the mandate while they petition the Supreme Court for review. Without a delay, the mandate will issue on October 13, 2015. On September 11, 2015, two weeks after the Appellate Court’s decision, the DOL issued a policy statement announcing that it would begin enforcement of the new regulations 30 days after the Court issues its mandate. If the Court of Appeals issues the mandate as scheduled, the DOL would begin enforcement on November 12, 2015.
The DOL’s policy statement also indicates that through December 31, 2015, it will exercise "prosecutorial discretion" in deciding whether to bring enforcement actions. It will consider factors such as good faith efforts to comply. Even if the DOL begins enforcement on November 12, the time-limited "prosecutorial discretion" period will not likely be very helpful to home care agencies. As we have previously stated, once the decision goes into effect, individuals can sue for overtime.
We will let you know about the success of efforts to delay the effective date pending appeal to the Supreme Court. If you have any questions, please contact Michael Colgan Harrington at firstname.lastname@example.org or Dena M. Castricone at email@example.com.