Home-Care Workers Rule in Limbo Following Judge's Stay of Exemption for Companions

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By Gayle Cinquegrani

Jan. 2 — Associations representing home-care agencies, organizations representing home-care workers and the Labor Department are awaiting further developments in a case involving the hotly contested home-care workers rule, part of which was stayed for two weeks by a federal judge Dec. 31.

The order suspends until Jan. 15 the implementation of the provision, which narrows the Fair Labor Standards Act's exemption from minimum wage and overtime laws for workers who provide companionship services. Examples of companionship activities include playing cards, visiting with neighbors and taking walks.

Judge Richard J. Leon of the U.S. District Court for the District of Columbia scheduled a Jan. 9 hearing on the plaintiffs' request for a preliminary injunction. He is expected to rule on the matter before the temporary stay lapses.

“This recent court decision is standing in the way of fair pay for this vital workforce,” Jodi Sturgeon, president of the Paraprofessional Healthcare Institute, said.

The judge issued the order nine days after invalidating a separate part of the new rule providing that home-care workers employed by a third-party business are no longer exempt from the FLSA. In his opinion, the judge concluded Congress didn't delegate to the Labor Department the authority to change the FLSA's statutory terms, which exempt “any employee” providing “companionship services” from the minimum wage and overtime requirements and exempt “live-in” domestic service providers from the overtime obligation.

The rule, which was to take effect Jan. 1, would have made most home-care workers eligible for minimum wages and overtime pay.

DOL Stands by its Rule

The Labor Department told Bloomberg BNA in a Jan. 2 statement that it stands by its rule. “The Final Rule’s extension of minimum wage and overtime protections to most home care workers is the right policy—both for those employees, whose demanding work merits these fundamental wage guarantees, and for recipients of services who deserve a stable and professional workforce allowing them to remain in their homes and communities,” the DOL said.

In a Jan. 2 statement, Jodi Sturgeon, president of the Paraprofessional Healthcare Institute (PHI), told Bloomberg BNA: “It is deeply disappointing that in 2015, home care workers are still waiting for basic federal labor protections despite the U.S. Department of Labor’s new rule—the outcome of a three-year regulatory process. This recent court decision is standing in the way of fair pay for this vital workforce.” While the lawsuit proceeds, PHI called on “private home care employers and state Medicaid programs to embrace fair pay for home care workers—making necessary adjustments in their programs and services to extend minimum wage and overtime protections to this essential workforce.”

The Home Care Association of America, one of the plaintiffs in the lawsuit, said in a Dec. 31 statement, “This week’s decisions provide hope to many who had feared they would no longer be able to afford home care services due to the Labor Department’s overreach.” HCAOA Executive Director Phil Bongiorno said, “This decision is yet another step in our quest for a decisive victory for seniors and individuals with disabilities who depend on these vital home care services provided by our member companies.”

The other plaintiffs are the National Association for Home Care and Hospice (NAHC) and the International Franchise Association.

Court Order Called ‘Temporary Reprieve.'

In a Dec. 31 statement, NAHC Chairman Andrea Devoti commended the court for issuing the stay. “This means that our most vulnerable citizens get at least a temporary reprieve from what would otherwise have become a significant cost barrier to their paying for help at home for their chronic diseases,” she said. “Without this relief many seniors would be pushed into institutional care.”

In the statement, NAHC said its motion for a temporary stay was supported with detailed affidavits of likely harm from two disability rights advocacy groups—the Centers for Independent Living and ADAPT—along with the Kansas Department on Aging, which says it fears that paying overtime will undermine the financial stability of its home-care programs.

NAHC explained that a temporary restraining order can be in force for no more than 14 days, while a preliminary injunction can be in effect until the case ends. While the temporary restraining order is in effect, home-care companies do not have to pay home-care aides and personal-care attendants overtime wages under federal law, NAHC said. If the court grants the preliminary injunction, the overtime exemption will continue until the court makes its final ruling or an appeals court reverses the injunction, it said.

To contact the reporter on this story: Gayle Cinquegrani in Washington at gcinquegrani@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the order is available at http://www.bloomberglaw.com/public/document/HOME_CARE_ASSOCIATION_OF_AMERICA_et_al_v_WEIL_et_al_Docket_No_114/1.


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