Breaking News – Federal Appeals Court Order Takes Effect That Will Reinstate Federal Regs Requiring Homecare Overtime

posted by: Amed Realty in Uncategorized




Filing of Order or Mandate Means It Takes Effect Today – US Department of Labor Regulations Will Take Effect November 12thSACRAMENTO, CA [BY MARTY OMOTO, CDCAN LAST UPDATED 10/13/2015 06:49 AM] – As expected, the federal appeals court order that will reinstate the US Department of Labor regulations requiring overtime for previously exempted home care workers across the nation, including In-Home Supportive Services (IHSS), regional center funded supported living services, in-home respite services and personal assistance services workers in California, was officially filed this morning in Washington, DC, making that order or mandate effective today.
The US Department of Labor previously indicated that when the order or mandate is officially filed, the federal regulations will then take effect 30 days after that – meaning November 12, 2015 (Thursday).  The US Department of Labor also previously indicated it would not enforce the regulations from November 12th through December 31st, but that non-enforcement does not protect providers and community organizations from potential legal action from their workers for not implementing the overtime requirements.
In California it is expected that the State will soon issue notice on what it will do in terms of implementing overtime for IHSS and regional center funded home care workers.  Those guidelines were established in the 2014-2015 State Budget but have been on hold since last January due to the lawsuit.
CDCAN will provide a more comprehensive report on the overtime issue and California’s response to it later today.
As previously reported by CDCAN on October 6th, Chief Justice John Roberts of the US Supreme Court denied a request (motion ) by the Home Care Association of America and others, for a “stay” (or delay) of the federal appeals court order of August 21st to reinstate the federal regulations requiring overtime for previously exempted home care workers including In-Home Supportive Services (IHSS), and regional center funded supported living services (SLS), in-home respite services and personal assistance services. The federal appeals court overturned a lower federal district court ruling issued in late December and mid-January that struck down those regulations.

The following is the text regarding implementation of the federal regulations following the filing of the federal appeals court order from the US Department  of Labor website:

“:U.S. Court of Appeals Unanimously Upholds DOL Rule, Opinion will take effect Oct. 13
    The Department of Labor issued the Home Care Final Rule to extend minimum wage and overtime protections to almost 2 million home care workers. We believe the Rule 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 Home Care Final Rule, issued on October 1, 2013, had an effective date of January 1, 2015.
    In June 2014, associations of home care companies filed a lawsuit in federal court challenging the Final Rule. In December 2014 and January 2015, U.S. District Court Judge Richard Leon issued opinions and orders vacating the Final Rule’s revised third party regulation and revised definition of companionship services, respectively.
    The Department of Labor filed an appeal of the district court’s orders to the U.S. Court of Appeals for the District of Columbia Circuit. The case is Home Care Association of America v. Weil, No. 15-5018 (D.C. Cir.). On August 21, 2015, the Court of Appeals issued a unanimous opinion affirming the validity of the Final Rule and reversing the district court’s orders.
    Because of the district court orders, the Department has not begun enforcement of the Final Rule. The Court of Appeals opinion reversing those orders does not take effect immediately. By default, it becomes effective 52 days after the opinion was issued. The court denied a request from the home care associations to delay that date and a request from the Department to expedite it. The associations filed an application in the U.S. Supreme Court seeking delay of the date, which was denied on October 6. The Court of Appeals opinion therefore becomes effective on October 13. The Department will not begin enforcement of the Final Rule for 30 days, which is November 12. From November 12 throughDecember 31, 2015, the Department will be in the second phase of its previously announced time-limited non-enforcement policy, during which 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 promulgation of the Final Rule.
    The Department has led an unprecedented implementation program to help employers of home care workers prepare for FLSA compliance, including offering an extensive and individualized technical assistance program, providing a 15-month period before the effective date, and adopting a time-limited non-enforcement policy. We have repeatedly encouraged States and other employers to take the necessary steps toward implementation. We continue to stand ready to provide technical assistance to States and other entities as they implement the Final Rule.”