Timely Compliance With Home-Care Rule Needs Year-End Effort

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By Christine Pulfrey

Enforcement of a final rule that takes effect Jan. 1, 2015, to extend Fair Labor Standards Act minimum-wage and overtime protections to certain direct-care workers is to be delayed, but employers should not hesitate to ensure timely compliance with the rule's minimum-wage, overtime and recordkeeping requirements.

Effective Jan. 1, home-care agencies and third-party employers must pay at least the federal minimum wage and overtime to jointly or solely employed direct-care workers, such as a certified nursing assistant, home-health aide, personal care aide, caregiver or companion, the Labor Department's Home Care website said.

From Jan. 1, 2015, to June 30, 2015, enforcement actions will not be brought against employers that fail to comply with FLSA obligations imposed by the final rule, the department said Oct. 7. For the rest of 2015, the department said it plans to “exercise its discretion in determining whether to bring enforcement actions, giving strong consideration to the extent to which states and other entities have made good-faith efforts to bring their home-care programs into FLSA compliance.”

FLSA violations can be costly, and it is far better for a third-party agency to adjust its practices early to work out any kinks, Kathlyn Perez, an associate at the New Orleans office of the law firm Baker Donelson, said June 19 in an article for Bloomberg BNA's Health Law Reporter.

State Changes

Because the final rule's effect would vary by state, employers should understand their state law's requirements, Sarah Leberstein, a lawyer with the National Employment Law Project and co-author of its Aug. 2011 “Fair Pay for Home Care Workers: Reforming the U.S. Department of Labor's Companionship Regulations Under the Fair Labor Standards Act,” report, told Bloomberg BNA in an Oct. 7 telephone interview.

In 29 states and Puerto Rico, where home-care workers have been exempted from minimum-wage and overtime laws or which have no state minimum-wage law, those workers will receive “minimum-wage and overtime protections for the first time under the final rule, NELP's Oct. 2013 “Federal Minimum Wage & Overtime Protections for Home-Care Workers” fact sheet and state chart said.

Employers that show good-faith compliance efforts now may  avoid an audit or lawsuit later.

In 13 states and the District of Columbia, workers will be covered by a state minimum-wage rate higher than that of the federal rate, and in six states and the District of Columbia, home-care workers will have overtime protections for the first time, the chart said.

“Other states use the same language as the regulation without an explicit reference” to it, Leberstein said. “It is important for everyone to engage the state labor department to clarify what the state-law coverage is,” she said.

An Ounce of Prevention

“The key change that is applicable to private employers and to states is going to be tracking worker hours and better record-keeping practices,” Leberstein said. “It shouldn't be rocket science. But some employers haven't had to track hours worked by [home-care] workers,” she said, noting that this is especially true of states that thought of home-care workers as independent providers.

The timekeeping system should be reviewed to ensure it is sufficient to accurately capture all employee hours worked and payroll systems reviewed to ensure overtime pay will be correctly calculated, Perez said.

Workers should be instructed on marking time worked, and employers should consider innovative ways to keep time records, Leberstein said.

Under the final rule, “if the employee spends more time working than was anticipated, the employee must be paid,” Joseph K. Mulherin, a shareholder in Vedder Price's Chicago office who advises employers on employment-law issues, said in a June 13, interview with Katarina E. Wiegele for Bloomberg BNA's FLSA Litigation Tracker. “If the employee's sleep time, meal periods or other periods of free time are interrupted, the interruption must be counted as hours worked.”

“In home-care work arrangements, there will undoubtedly be situations where the employee is working without the employer's knowledge, e.g., because the employer is sleeping,” Mulherin said. “Thus, it is critical that employers require their employees to accurately self-report all actual work hours.”

Opportunities for Innovation

Under the rule, employers of nonexempt domestic-service workers, including live-in workers, must maintain an accurate record of hours worked, but “as in other employment arrangements, the employer may require that the employee record the hour and submit the time records to the employer,” Mulherin said.

Innovative ways to manage timekeeping include “some workers in New York call in from a client's home to report to an automated system that they arrived and call [again] when they leave, so that doesn't put an enormous burden on anyone, and the company can better track hours worked and ensure workers get paid,” Leberstein said.

The Labor Department Home Care web portal has employer resources and a page for workers to download a work calendar or link to a Smartphone app to track hours.

To contact the editor on this story: Michael Trimarchi at mtrimarchi@bna.com