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Total Articles: 45

FLSA Conditional Certification Denied in NYS for 5,000 Home Care Workers

Executive Summary. In a case with far reaching implications, Cowell v. Utopia Home Care, Inc., 2:14-cv-00736-LDW-SIL, Magistrate Judge Steven Locke of the Eastern District of New York (covering Brooklyn, Queens and Long island) ruled that claims of failure to pay home care workers for hours worked and overtime are not suitable for a collective action where the workers' conditions of employment vary so much between different home care workers and even for the same worker when working for different patients. This could prove to be a very important decision for the home care industry in New York, which has been battered by collective and class action complaints by a very active plaintiff attorneys bar. Every home care agency in New York is a potential target because home care workers can recover double damages and their attorneys' fees if they prevail.

Individuals, Families, and Households and Those Who Jointly Employ Home Care Workers With Them are All Liable for Unpaid Overtime

Executive Summary: Claims by home care workers for unpaid overtime have risen steadily since the U.S. Department of Labor, in 2015, eliminated the federal overtime exemptions that allowed agency employers essentially to pay no overtime wage premiums. This has greatly affected agency employers In New York, who are increasingly seeing class action suits being filed against them. It has also affected individuals, families and households in New York who hire home care workers directly, especially when the home care worker is an agency-employer worker who is continued for extra hours in a workweek. Since 2010, the New York Domestic Workers Bill of Rights has required "direct-hire" employers of home care workers to pay overtime at time and one half the worker's regular rate. When an agency worker is continued for extra hours by an individual, family or household, both can be held liable for unpaid overtime on all hours worked over 40 in a workweek, regardless of who scheduled the hours. Beyond the agency and individual, family, or household, others who have the power, whether or not exercised, to hire, employ, or pay the worker, such as a child or relative who takes care of a client's affairs or an attorney acting under a power of attorney or as a legal guardian, conservator, or trustee, are also at risk of being held liable.

Supreme Court Leaves Intact Limited Overtime Exemption for Companionship Services Providers

An overtime exemption for companionship services providers -- such as home health aides, personal care aides and certified nursing assistants -- will remain limited only to those workers who are not directly employed by the family or household using their services.

Supreme Court Declines Review of D.C. Circuit’s Decision Upholding DOL Home Care Rule as Regulatory and Litigation Focus on Home Care Industry Intensifies

On June 27, 2016, the U.S. Supreme Court denied the plaintiffs’ petition for a writ of certiorari in Home Care Association of America v. Weil, leaving the U.S. Department of Labor’s (“DOL”) Home Care Rule intact.1 The Home Care Rule has extended minimum wage and overtime requirements to the vast majority of home care workers by eliminating the availability to third-party agencies of the companionship and live-in domestic service worker exemptions and by dramatically narrowing the definition of companionship services.

DOL Issues Guidance on Room and Board Deductions for Home Care Workers

On December 17, 2015, the U.S. Department of Labor’s (DOL) Wage and Hour Division issued guidance on permissible deductions for lodging under the Fair Labor Standards Act (FLSA), with particular emphasis on the law’s effect on home care workers. Section 203(m) of the FLSA permits employers to count as wages the “reasonable cost” of room and board. The recently issued guidance attempts to clarify the “fair value” of such room and board. This is an issue of particular relevance to employers of home care workers, as those workers are now covered by federal minimum wage and overtime laws under federal regulations issued in 2013.

Ohio Federal Court Rules Home Care Agency Not Required To Pay Overtime To “Companions” During Temporary Vacatur Of New Federal Rules

Providing much needed guidance to industry employers still wrestling with fallout from the United States Department of Labor’s drastic reduction to the scope of the companionship exemption, District Court Judge Sandra S. Beckwith held this week that a home care agency properly relied on the temporary vacatur of the DOL’s new federal regulations in electing not to pay overtime to its home healthcare employees during the period while the vacatur was in effect. Bangoy, et al. v. Total Homecare Solutions, LLC, S.D. Ohio No. 1:15-CV-573 12/21/15.

Home Care Industry Coalition Seeks Supreme Court Review of DOL's Home Care Rule

In the latest litigation chapter involving the U.S. Department of Labor’s rule extending minimum wage and overtime requirements to certain home care workers, a home care industry coalition has taken its challenge of the rule to the U.S. Supreme Court. On November 18, 2015, the plaintiffs in Home Care Association of America v. Weil filed a petition for a writ of certiorari with the Supreme Court seeking review of the U.S. Court of Appeals for the D.C. Circuit’s decision upholding the DOL’s Home Care Rule and reversing the lower court’s decisions vacating the new rule. The Home Care Rule, among other things, prevents third-party employers of home care “companions” or live-in caregivers for the elderly and disabled from availing themselves of the longstanding statutory exemptions from the federal Fair Labor Standards Act's minimum wage and/or overtime requirements. The Supreme Court has the discretion to grant or deny review of the D.C. Circuit’s decision.

Home Care Fallout: Increased Institutionalization?

Five days into the DOL’s enforcement of the new rule rendering most home health aides eligible for overtime under the FLSA, questions abound regarding how state Medicaid and Medicare-funded programs will comply with the rule within their current budgets. One new report cautions consumers of home health care and their advocates to be aware of the rule so they can stave off “unintended harms” including, among others, the potential for “cuts in service hours [to] make it very difficult to remain in the community and avoid institutionalization, particularly if [consumers] cannot find additional workers to fill their [needed] hours.”

DOL Enforcement of Home Care Rule to Commence November 12, Subject to “Prosecutorial Discretion”

Chief Justice Roberts’ denial of the Home Care Association of America’s request for stay of issuance of mandate confirms that the new rule rendering many home health aides overtime-eligible is effective, pending appeal. In response to that denial, Wage-and-Hour Administrator David Weil issued a new policy statement confirming that the Department’s “non-enforcement period” for the new rule will end on November 12, 2015. After that, the policy statement indicates the Department will “exercise prosecutorial discretion pursuant to its previously announced time-limited non-enforcement policy” through December 31, 2015.

Court Enters Summary Judgment in Favor of DOL in Home Care Rule Challenge

In an order dated October 20, 2015, pursuant to the D.C. Circuit’s mandate issued on October 13, 2015, U.S. District Court Judge Richard Leon entered summary judgment in favor of the U.S. Department of Labor (DOL) in Home Care Association of America v. Weil. In this case, the U.S. Court of Appeals for the District of Columbia Circuit upheld the DOL's Home Care Rule, which, among other things, prevents third-party employers of home care “companions” or live-in caregivers for the elderly and disabled from availing themselves of the longstanding statutory exemptions from the federal Fair Labor Standards Act's minimum wage and/or overtime requirements.

U.S. Supreme Court Denies Stay of the DOL Wage Rule for Home Care Workers

The Department of Labor (DOL) promulgated a rule that brings home care workers, employed by third parties, within the protection of the Fair Labor Standards Act (FLSA). As a result, those home care workers employed by an entity other than the individual, or the family of the individual for whom they are caring, will be entitled to be paid minimum wage and overtime under the new rule.

United States Supreme Court Denies Stay of Appeals Court Ruling Validating USDOL's Final Rule

Executive Summary. The United States Supreme Court has denied a request for a stay of the United States Court of Appeals for the District Of Columbia's ruling in the lawsuit challenging the U.S. Department of Labor's ("USDOL") "Final Rule" affecting minimum wage and overtime compensation for home care aides and live-in personal care services (known as the "companionship exemption" of the Fair Labor Standards Act, or FLSA). With this ruling, the Final Rule is expected to take effect on or about October 13, 2015, though the USDOL has formally stated that it will not begin enforcement proceedings under the Final Rule for 30 days following its effective date.

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

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.

Chief Justice Denial of Stay Request Clears Way for New FLSA Regulations Affecting Home Care Agencies to Go Into Effect October 13, 2015

On October 6, 2015, Chief Justice John Roberts of the Supreme Court of the United States summarily denied the emergency stay application filed by the association plaintiffs in Home Care Association of America v. Weil. In the absence of a stay, the new U.S. Department of Labor’s (DOL) regulations extending the federal minimum wage and overtime requirements for home health care workers employed by third-party employers are expected to go into effect on October 13, 2015.

October 13 Effective Date of the Home Care Rule Stands—For Now

On August 21, 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Department of Labor's Home Care Rule.1 Based on that decision, the effective date of the Home Care Rule is October 13, 2015.

Many Home Companionship Workers No Longer Exempt

Agencies and other third-party employers of live-in household employees and home companionship providers, take note: the long-delayed regulations reclassifying many of these workers as non-exempt employees entitled to minimum wage and overtime under the FLSA are now in effect.

October 13 Effective Date of the Home Care Rule Stands—For Now

On August 21, 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld the Department of Labor's Home Care Rule.1 Based on that decision, the effective date of the Home Care Rule is October 13, 2015.

Home Health Care Agencies, DOL Continue to Wrangle Over FLSA Regs Effective Date

As we previously reported, on August 21, 2015, the United States Court of Appeals for the D.C. Circuit in Home Care Association of America v. Weil reinstated the U.S. Department of Labor’s (DOL) regulations extending the federal minimum wage and overtime requirements for home health care workers employed by third-party employers. The federal appeals court decision overturned a lower court decision that struck down the new regulations just before they were scheduled to go into effect at the beginning of 2015.

USDOL Delays Its "Companionship", "Live-In Domestic" Enforcement

As we recently reported, the U.S. Department of Labor's changes in its regulations governing the Fair Labor Standard Act's Section 13(a)(15) "companionship" exemption and Section 13(b)(21) overtime exemption for "live-in domestics" are once again in effect following a recent decision from the U.S. Court of Appeals for the District of Columbia. One of the most-important revisions is that third-party employers may no longer rely upon these exemptions.

D.C. Court of Appeals Backs DOL Reversal of Long-Standing Overtime Exemption for Home Care Agency Workers

Until recently, the U.S. Department of Labor (DOL) had long interpreted the federal Fair Labor Standards Act (FLSA) as exempting companionship-services workers and live-in domestic service workers employed by third-party employers (i.e., “home care agencies”) from the FLSA’s minimum wage and/or overtime requirements. In 2013, however, the DOL adopted regulations reversing that established position, finding that the FLSA’s minimum wage and overtime requirements protect home care agency workers and sending shockwaves throughout an entire industry.

D.C. Circuit Upholds DOL’s Home Care Rule; Further Appeals Likely

On August 21, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) upheld the United States Department of Labor’s (“DOL’s”) Home Care Rule and reversed the lower court’s decisions vacating the new Rule. In the Home Care Rule, issued in October 2013, the DOL declared that third-party employers of home care “companions” or live-in caregivers for the elderly and disabled could no longer avail themselves of the longstanding statutory exemption from overtime requirements. The new Rule also set a maximum 20 percent threshold for any caregiving services to be provided by home care companions, regardless of their employer, to qualify for exempt status. The effect of the new Home Care Rule(s) is to require overtime to be paid for the first time to more than 90% of all home caregivers throughout the country.

Companionship Exemption Changes In Effect

The latest twist in the ongoing saga involving the U.S. Department of Labor's changes in its regulatory provisions affecting the Fair Labor Standard Act's Section 13(a)(15) "companionship" exemption and the FLSA's Section 13(b)(21) overtime exemption for "live-in domestics" came from the U.S. Court of Appeals for the District of Columbia Circuit.

Companionship Services Providers Once Again Eligible for Overtime

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).

DOL's Final Rule Upheld By D.C. Court Of Appeals

BREAKING NEWS: The D.C. Court of Appeals ruled today that the US Department of Labor's ("DOL") Final Rule on the Application of the Fair Labor Standards Act to Domestic Service (the "Final Rule") is valid, because it is "grounded in a reasonable interpretation of the statute (FLSA) and is neither arbitrary nor capricious." Under the Final Rule, home care agency workers are no longer covered by the FLSA's companionship services exemption or its live-in domestic worker exemption. This decision is of serious concern to the home care industry. Whether the decision will be appealed to the U.S. Supreme Court remains to be seen.

Federal Appeals Court Reinstates New Federal Minimum Wage and Overtime Requirements for Home Health Care Workers Employed By Third-Party Employers

The United States Court of Appeals for the D.C. Circuit in Home Care Association of America v. Weil reinstated the U.S. Department of Labor’s regulations extending the federal minimum wage and overtime requirements for home health care workers employed by third-party employers. Today’s federal appeals court decision overturns a lower court decision that struck down the new regulation just before it was scheduled to go into effect at the beginning of 2015. The appeals court decision does not mean that the minimum wage and overtime requirements will go into effect immediately. The case will likely now return to the district court with instructions by the federal court of appeals for the court to issue a decision upholding the regulations unless there is further review of the case by either the full panel of the District of Columbia Circuit or the Supreme Court of the United States.

DC Circuit Upholds DOL's End to Companionship Exemption for Third-Party Agencies

The U.S. Court of Appeals for the D.C. Circuit today ruled that the U.S. Department of Labor’s decision to reverse its prior position and extend the FLSA’s minimum wage and overtime protections to employees of third-party agencies who provide companionship services and live-in care within a home was a reasonable interpretation of the law.

Judge Vacates Parts of USDOL Home-Care Regulation

A federal judge has scuttled key aspects of the U.S. Department of Labor's rule that would have extended the federal Fair Labor Standards Act's minimum-wage and overtime requirements to many home care workers starting January 1, 2015. Although USDOL will likely appeal the court's rulings, for now home care agencies may anticipate that USDOL will not be enforcing those requirements as to home care aides and personal care attendants who fall within that law's companionship and live-in-domestic exemptions under the regulations that USDOL sought to change.

Court Vacates DOL’s New “Companionship Services” Definition

On January 14, 2015, the court in Home Care Association of America v. Weil vacated the U.S. Department of Labor’s (DOL) regulation narrowing the definition of “companionship services” under the Fair Labor Standards Act (FLSA). In doing so, the court reinstated the status quo for home health care businesses on the question of whether and how they can avail themselves of the FLSA’s minimum wage and overtime exemption for caregivers. Though home health care businesses are breathing a sigh of relief, it remains to be seen whether the DOL will appeal the court’s rulings and, if so, the outcome of that appeal.

Court Stays New FLSA Companionship Regulation From Going Into Effect

The court in Home Care Association of America v. Weil dealt another setback to the U.S. Department of Labor’s (DOL) amendments to the Fair Labor Standards Act’s (FLSA) regulations affecting home health care businesses. On December 31, 2014, the court issued an order temporarily staying the DOL’s new regulation narrowing the definition of “companionship services.” The order stops that regulation from going into effect until January 15, 2015. In the meantime, on January 9, 2015, the court will hear argument on whether the stay should be continued beyond January 15, 2015.

Court Vacates DOL’s Regulations Mandating Minimum Wage and Overtime Payments to Home Health Care Employees

Just as many home health care agencies were gearing up for a major change to their businesses, a federal judge in Washington D.C. struck down the new U.S. Department of Labor (DOL) regulation extending the federal overtime and minimum wage requirements to home care workers employed by third-party businesses. The court’s December 22, 2014 ruling in Home Care Association of America v. Weil (No. 14-cv-967) vacates the new regulation and means that the amendment will not take effect on January 1, 2015, unless it is stayed or otherwise reversed by an appellate court. The DOL has not stated how it intends to respond to the court’s ruling, though an appeal is expected. The court’s ruling does not affect the other parts of the new regulation, including its narrowed definition of what constitutes “companionship services” and its recordkeeping requirements.

Can Your Home Care Agency Afford to Employ "Sleep-Ins"?

Under the Department of Labor's Final Rule on Domestic Service, a "Sleep-In" worker is one who is required to be on duty for 24 hours or more. This worker differs from a "Live-In Domestic Services Employee" ("Live-In") who (1) provides services in a private home, and (2) resides on the employer's premises on a "permanent basis" (works and sleeps at the employer's premises and has no home of his or her own), or for "extended periods of time" (works and sleeps at the employer's premises for five days a week (120 hours or more)) or resides there for five consecutive nights or days at a time.

Home Companionship Industry Will Feel FLSA Exemption Fix

Although announced in the latter part of 2013, the U.S. Department of Labor rule changes affecting the companionship exemption in the Fair Labor Standards Act are finally set to take effect on Jan. 1, 2015. The changes will significantly impact the home companionship industry, which currently employs about 2 million people. With the rule change imminent, home companion companies only have a few weeks remaining to ensure compliance.

Health Law Alert: Department of Labor Delays FLSA Enforcement and Penalties Against Home Healthcare Companies

Employers in the home healthcare industry will be getting a brief delay in the enforcement of new regulations extending minimum wage and overtime requirements to home healthcare workers under the Fair Labor Standards Act (“FLSA”).

USDOL Defers Enforcement Action On "Companionship" Changes

For some time now, we have followed the U.S. Labor Department's efforts to curtail the federal Fair Labor Standards Act's Section 13(a)(15) "companionship" exemption. Those efforts culminated in a Final Rule published in October 2013. The revisions will effectively eliminate the exemption in many current-day scenarios, primarily by making it unavailable to third-party employers such as home-care agencies.

Are You Paying Home Health Workers Federal Minimum Wage and Overtime? If Not, It’s Time to Start

Traditionally, home health workers who have provided for the care, fellowship, and protection of persons who, because of their advanced age or physical or mental infirmity could not care for themselves, have been exempt from the federal minimum wage and overtime requirements. These workers are exempt from these wage and hour protections under the “companionship” or “live-in domestic” services exemptions of the Fair Labor Standards Act (FLSA).

Department of Labor Clarifies FLSA Coverage for Domestic Service Employees

In September 2013, the U.S. Department of Labor (DOL) published revised regulations concerning application of the federal Fair Labor Standards Act (FLSA) to employees providing in-home companionship services to adults. According to the DOL, the new regulations reflect the fact that the home care industry for elderly or otherwise compromised individuals has grown significantly since 1975, the year in which the DOL last promulgated regulations concerning such domestic service employees. The new regulations, which go into effect on January 1, 2015, extend coverage to a significant number of workers in the home care industry who were previously considered exempt from the FLSA's minimum wage and overtime requirements.

U.S. DOL's Final Rule Limiting Domestic Services Imposes Heavy Burden on Household Direct Hires

Executive Summary: Individuals and families who for years have directly employed domestic workers to care for elderly or ill family members will see their labor costs increase dramatically beginning January 1, 2015. Under the U.S. DOL's Final Rule Limiting Domestic Services, the Fair Labor Standards Act's "companionship exemption" will only cover workers whose primary duty is "eldersitting" and not "care" services. The Final Rule also provides detailed interpretations of "hours worked" rules as applied to these workers. Even before January 1, 2015, in states that follow U.S. DOL hours worked rules, this may expose individuals and families to claims by state Departments of Labor and lawsuits by plaintiffs' lawyers under state law.

Final Rule Expands Application of the Fair Labor Standards Act’s Minimum Wage and Overtime Pay Provisions to Domestic Service Workers

The U.S. Department of Labor (DOL) recently revised its own regulations to significantly narrow the definition of what it called “companionship services” so that many direct care workers — such as certified nursing assistants, home health aides, personal care aides, and other caregivers — will be protected by the Fair Labor Standards Act (FLSA) as of January 1, 2015.

2015 Will Usher In Increased FLSA Liability for Home Health Care Agencies

On Tuesday, September 17, 2013, the U.S. Department of Labor (DOL) issued a final rule extending the Fair Labor Standard Act’s (FLSA) minimum wage and overtime protections to an estimated two million home health care workers. Scheduled to take effect on January 1, 2015, this amendment narrows the FLSA’s “companionship” exemption.

Legal Alert: Companionship Exemption for Agency Employed Home Care Workers Ends Effective January 1, 2015

Executive Summary: On September 17, 2013, the U.S. Department of Labor (DOL) issued its long-delayed Final Rule revising its regulations to eliminate the Fair Labor Standards Act's (FLSA) companionship exemption for agency-employed direct care workers. While the effective date of the revisions is postponed until January 1, 2015, home care agencies will be exposed to significant wage and hour liability they never had before.

Healthcare Industry Legal Alert: The Companionship Exemption for Agency Employed Home Care Workers May End As Early As This Month. Are You Prepared to Defend Your Agency Against the Lawsuits That Will Follow?

Executive Summary: It has been reported that the Department of Labor (DOL) will issue a rule this month revising its regulations to eliminate the Fair Labor Standards Act's (FLSA) companionship exemption for agency-employed home care workers. This rule will expose home care agencies to significant wage and hour liability they never had before. Yet, agencies can take steps to limit their exposure to individual and class action lawsuits for overtime, other violations of the FLSA, and accompanying state law claims.

Senators Move To Preserve FLSA's "Companionship" Exemption

There have been further developments regarding the U.S. Department of Labor's proposed regulation that would drastically limit the Fair Labor Standard Act's Section 13(a)(15) "companionship" exemption. A collection of our posts relating to these matters can be accessed here.

Clock Now Ticking On "Companionship", Live-In Domestic Restrictions December 31, 2011 02:52

The U.S. Labor Department has officially published the proposed provisions that would drastically limit the federal Fair Labor Standards Act's exemptions for "companionship" workers and live-in domestic employees. As we have reported, adopting these proposals in their current form will mean that the proportion of such companions and domestic-service workers who are exempt from that law's minimum-wage and/or overtime requirements will be far smaller than it is today.

Regulation Proposed to Limit FLSA's "Companionship" Exemption

As we suspected, efforts to eviscerate the federal Fair Labor Standards Act's Section 13(a)(15) "companionship" exemption have now formally moved to the regulatory arena. The U.S. Labor Department has proposed a regulation that would limit the exemption to a far-narrower segment of those employees who work as in-home caregivers. This move no doubt reflects a political judgment that legislative measures to amend the FLSA itself (about which we wrote in June) would not emerge from Congress.

FLSA's "Companionship" Exemption In Peril.

If a recently proposed amendment becomes law, the federal Fair Labor Standards Act's Section 13(a)(15) exemption for certain "companionship" employees will essentially be eliminated.
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