Companionship Services Providers Once Again Eligible for Overtime
Author: Michael Cardman, XpertHR Legal Editor
August 24, 2015
An estimated 2 million direct care workers -- such as home health aides, personal care aides and certified nursing assistants -- who are not directly employed by the family or household using their services are no longer exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA).
In Home Care Ass'n of Am. v. Weil, 2015 U.S. App. LEXIS 14730 (D.C. Cir. Aug. 21, 2015), the United States Court of Appeals for the District of Columbia Circuit ruled that the US Department of Labor (DOL) acted within its statutory authority when it issued new regulations that:
- Prohibit third-party employers from claiming the FLSA exemption for companionship services providers; and
- Narrow the range of duties that FLSA-exempt services providers may perform.
Earlier this year, a federal district court voided the new regulations two weeks after they took effect. But the appellate court overturned the lower court's decision, stating that the DOL "has the authority to 'work out the details' of the [companionship services exemption], and the treatment of third-party-employed workers is one such detail."
The DOL applauded the decision in a statement, saying, "the rule is the right thing to do - both for 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 coalition of industry groups that filed the lawsuit against the regulations is "considering all options," including asking all nine judges (rather than a three-judge panel) of the appellate court to re-hear the case and/or appealing the decision to the US Supreme Court.
In the meantime, the DOL has announced that from now until December 31, 2015, it will "exercise prosecutorial discretion in determining whether to bring enforcement actions, with particular consideration given to the extent to which States and other entities have made good faith efforts to bring their home care programs into compliance with the FLSA" since the regulations were finalized in 2013.