Overtime Rules for Companionship Services to Take Effect Next Week, Despite Efforts to Delay

Author: Michael Cardman, XpertHR Legal Editor

October 9, 2015

The Supreme Court recently denied a coalition of industry groups' request to postpone new regulations that make direct care workers -- such as home health aides, personal care aides and certified nursing assistants -- eligible for overtime pay.

The new regulations will take effect on October 13.

In 2013, the US Department of Labor (DOL) issued new regulations that prohibit third-party employers from claiming the Fair Labor Standards Act (FLSA) overtime exemption for companionship services providers and narrow the range of duties that FLSA-exempt services providers may perform.

Earlier this year, a lower court struck down the regulations; but in August, an appellate court upheld them. Soon after, the Home Care Association of America, the International Franchise Association and the National Association for Home Care and Hospiceasked the Supreme Court to delay the regulations while they prepared an appeal. They said the regulations will impose unrecoverable costs and disrupt services for consumers, who "will in many cases no longer be able to receive continuous services from a single caregiver, because working hours will have to be capped to control overtime compensation costs."

The DOL applauded the Supreme Court's order. "The final rule is not only legally sound; it was the right thing to do," US Labor Secretary Thomas E. Perez said in a statement. "It will ensure fair wages for the nearly two million home care workers who provide critical services, and it will help ensure a stable and professional workforce for people who need those services."

The industry groups may still file an appeal with the Supreme Court. But it appears less likely that the Supreme Court would agree to hear their appeal since "one of the factors in deciding for or against a delay of a lower court order is whether the Supreme Court is likely to take on the issue," as longtime court reporter Lyle Denniston of SCOTUSblog observed.

In the meantime, the DOL has announced that it will not begin enforcement of the final rule before November 12, 2015. Between November 12, 2015, and December 31, 2015, the DOL 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.