A new Dept of Labor regulation that was to go into effect January,  2015 that would have extended the FLSA minimum wage and OT requirements to certain home-care workers was struck down in late Dec. by a Federal District Court for the District of Columbia.

In Dec. 2011, the Labor Dept issued a Notice of Proposed Rulemaking revising the FLSA as it related to domestic service regulations. The Court noted that this provision was a “thinly veiled effort to do through regulation what could not be done through legislation.”  The Court ruled that the DOL disregarded congressional intent and sought to “seize unprecedented authority to impose overtime and minimum wage obligations in defiance of the plain language of Section 213.” Section 213 is the section in the FLSA that addresses the live-in domestic employee exemption.

The DOL rule would have revised the FLSA’s definition of domestic service employment and companionship services and would have limited the minimum wage and OT exemptions to those individuals employed by a family or household, thus excluding those individuals employed by a third party such as home-care agencies.  The ruling lets those home-care agencies the possibility of continuing to claim FLSA’s exemptions as they relate to minimum wage and OT.

However, labor experts note that the effect of the Court ruling will be limited. There is a portion of the original DOL ruling that still remains in effect that redefines the scope of exempt companionship services, and most home-care workers provided by third parties perform duties that are not exempt. The exempt duties are those that primarily provide fellowship and protection for the cared-for. Experts feel there a few home-care workers, especially those that are provided by third-parties, whose primary duties are in those 2 areas.

As one would guess, the DOL strongly disagrees with the Court ruling and is considering an appeal. The Dept noted that employers of home-care workers are obligated to look at the duties their employees perform and make sure they are in compliance with all wage and labor requirements.

 

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