In our blog posts on September 1 and September 15, 2015, we discussed the impact and implementation of Home Care Association of America v. Weil, a recent decision rendered by the Court of Appeals for the District of Columbia Circuit. In Weil, the court affirmed a Department of Labor (“DOL”) final rule extending minimum wage and overtime protections under the Fair Labor Standards Act (“FLSA”) to certain classes of home care workers.
At the time we published our first update on this case, the appeals court had yet to rule on competing motions filed by the parties to amend the effective implementation date of the final rule’s mandate. The DOL had also published a notice in the Federal Register on September 14, 2015, stating that it would not begin enforcing the mandate until thirty days after the appellate opinion’s effective date. On September 18, 2015, the court denied both the appellee-home care associations’ motion to stay and appellant-DOL’s motion to expedite the effective date of the final rule. Following these denials, the mandate rendering the final rule effective issued on October 13, 2015. The DOL began enforcing the final rule thirty days after the mandate issued, on November 12, 2015.
With the mandate in effect and being enforced by the DOL, the extension of FLSA minimum wage and overtime protections to certain home care workers is now required by law. Key elements of this final rule are as follows:
- Amendments to the definition of “domestic service employment” that modernize the professions provided as examples falling within this category
- Revisions to the definition of “companionship services” that narrow the term’s scope to encompass only workers providing “limited, non-professional services” as intended by Congress when it created the original exemption
- Implementation of record-keeping requirement for hours worked by live-in domestic service employees to better ensure payment for all hours worked
- Modifications to regulations governing third-party employed domestic service employees, or employees whose employers are entities other than the individual to whom services are rendered or his or her family or household, to prevent such employers from claiming the companionship services or live-in domestic service exemptions for employees to whom the rule applies
Employers should be aware of two outstanding issues with the enforcement of this final rule.
First, the DOL’s current enforcement of the rule is governed by phase two of the time-limited, non-enforcement policy it promulgated in October 2014. During this phase, which will remain in effect until December 31, 2015, the DOL will “exercise its discretion in determining whether to bring enforcement actions.” The DOL will also pay particular attention during this time to the good faith efforts of companies to conform to the post-final rule FLSA requirements for their home care programs. As of January 1, 2016, the DOL will continue to provide assistance with achieving compliance.
Second, the appellee-home care associations filed a petition for a writ of certiorari to the Supreme Court of the United States on November 18, 2015. On December 16, 2015, the Court extended the time for the DOL to file its response to this petition until January 25, 2016. In the interim, employers of home care employees to whom the final rule applies should now be aware of and complying with the terms of that rule. A failure to comply, or to effect compliance in good faith, may expose employers to liability under the FLSA.
Wondering whether your business is in compliance with the DOL’s new rule? Feel free to contact the authors or another experienced employment lawyer from Conn Kavanaugh for additional information.