Enforcement Preparations Not Awaiting Pending Court Action

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By Christine Pulfrey

A federal appeals court on Sept. 18 refused to rush or to delay issuing a ruling that would affect when the Labor Department's home-care worker final rule takes effect. When the ruling is to be issued remains uncertain, but the Labor Department has begun detailing its enforcement plans and urging compliance.

The appeals court's ruling directs a district court to recognize the department's authority to issue a final rule (RIN 1235-AA05) to extend Fair Labor Standards Act minimum-wage and overtime protection to certain home-care workers (Home Care Ass'n of Am. v. Weil, D.C. Cir., No. 15-05018, opinion issued 8/21/15).

“The court of appeals opinion will become effective when that court issues a mandate directing the district court to enter a new judgment in favor of the Department,” the Labor Department said.

The appeals court denied a Sept. 1 motion by the coalition of home-care associations that brought the lawsuit that challenged the department's authority to issue the final rule. The motion asked the court to delay issuing its mandate while it petitions the Supreme Court to hear its appeal.

The appeals court also denied the Labor Department's Sept. 1 motion asking the court to issue its mandate at an unspecified earlier date.

“Based on the appellate process, the rules are expected to take effect on Oct. 13 barring no intervening court actions,” a Sept. 18 National Association for Home Care and Hospice news release said.

Meanwhile, a Labor Department policy statement, published Sept. 14 in the Federal Register (80 Fed. Reg. 55,029) formalized a 30-day nonenforcement policy.

“Although it is not yet known on what date the mandate will issue, the department will not bring enforcement actions against any employer for violations of FLSA obligations resulting from the amended domestic service regulations for 30 days after the date the mandate issues,” the department's statement said.

“This 30-day nonenforcement policy does not replace or affect the time line of the department's existing time-limited nonenforcement policy announced in Oct. 2014 (79 Fed. Reg. 60,974),” the department said, noting that it would adhere to its earlier policy by exercising discretion in determining whether to bring enforcement actions and providing technical assistance to the regulated community through Dec. 31, 2015.

The earlier policy, which was to take effect Jan. 1, 2015, said the final rule would not be enforced until after June 30, 2015, when it would be carried out with prosecutorial discretion for the rest of the year, it said.

The department “is making clear that, in whatever time remains between the end of that 30-day [nonenforcement] period and what would have been the end of the six-month-long prosecutorial discretion period, had the rules not been held up, that the prosecutorial discretion phase is still in effect as it would have been, but it will not be extended,” Sarah Leberstein, a senior staff lawyer at the National Employment Law Project, said Sept. 17.

“In other words, the [department] isn’t restarting the clock to provide for a full six-month-long prosecutorial discretion period,” she said.

The nonenforcement policy extends to all minimum-wage and overtime-compensation requirements that “newly result” from the final rule, the department website said.

Labor Secretary Thomas Perez sent letters to U.S. governors as a reminder that states need to be in compliance, that “the department has repeatedly encouraged states and other employers to take the necessary steps toward implementation” and that it is prepared to provide technical assistance to help states and other entities implement the final rule, Labor Department spokesman Jason Surbey said Sept. 17. 

To contact the reporter on this story: Christine Pulfrey in Washington at cpulfrey@bna.com

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


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