In our blog post on September 1, 2015, we discussed the Court of Appeals for the District of Columbia Circuit’s recent affirmation of a Department of Labor (“DOL”) final rule that extends the minimum wage and overtime protections of the Fair Labor Standards Act (“FLSA”) to certain classes of home care workers. When issuing its opinion, the appellate court directed that the mandate be withheld until after any party’s timely petition for rehearing. The appellate court also stated that it would permit a party, for good cause shown, to petition for expedited issuance of the mandate.
The plaintiff home care associations moved on September 1, 2015, to delay the date that the opinion’s mandate becomes effective. In support of this motion, the plaintiffs cited their intent to file a petition for writ of certiorari in the United States Supreme Court to challenge the appellate court’s interpretation of Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007). The plaintiffs also argued that good cause exists to stay the mandate, citing evidence from third-party employers regarding the “unrecoverable costs” of implementing the new regulatory scheme and the “inevitable” replacement of full-time caregivers with part-time workers, which they assert would “reduce the quality of care and increase the amount of waiting time for new caregivers.”
On that same day, the DOL moved to expedite the issuance of the mandate, arguing that the Coke decision “foreclosed” the argument propounded by the plaintiffs and rejected by the appellate court. The DOL also contended that its final rule has the support of consumer and labor industry representatives and experts “because FLSA protection for this [home care] workforce will result in better qualified employees, lower turnover, and a higher quality of care.”
Notwithstanding these competing requests, which are still currently pending, the DOL published a notice in the Federal Register on September 14, 2015, stating that it will not begin enforcing the final rule until 30 days after the appellate court’s opinion becomes effective. This policy of temporary non-enforcement does not affect an earlier non-enforcement policy announced in October 2014, which stated that during the period between July and December 2015, the DOL will exercise discretion over whether to bring enforcement actions and will pay particular attention to an entity’s good faith attempts to comply with the new rule. The September 2015 notice also explained that the DOL will continue to provide technical assistance to the regulated community.
For now, employers and employees in the home care industry must await the decisions on the parties’ respective motions concerning the issuance of the mandate and the plaintiffs’ anticipated petition for writ of certiorari. Employers should therefore remain on alert for the resolution of these issues, which could trigger the final effective date of the appellate court’s decision and enforcement of the DOL’s final rule.