Anticipating oral arguments May 7, 2015 in the U.S. Court of Appeals for the District of Columbia Circuit in:
Home Care Association of America; International Franchise Association (IFA); National Association for Home Care & Hospice
David Weil, Administrator of the Wage and Hour Division, U.S. Department of Labor; Thomas E. Perez, Secretary of Labor; U.S. Department of Labor
U.S. Senator Pat Roberts and U.S. Representative Tim Walberg (R-Mich.) offered an Amicus Brief for Members of the U.S. Congress to the court.
WASHINGTON, D.C. – April 20, 2015 – (RealEstateRama) — The Members offered their support of the Plaintiffs-Appellees in their fight against proposed rules that will undermine the quality and affordability of in-home companion and domestic care for seniors and disabled individuals. The brief can be found here.
The brief was signed by Senator Roberts, Senate Majority Leader Mitch McConnell (R-Ky.), Health, Education, Labor and Pensions Committee Chairman Lamar Alexander (R-Tenn.) and Senators Roy Blunt (R-Mo.), Marco Rubio (R-Fla.), John Boozman (R-Ark.), Mike Enzi (R-Wyo.), Johnny Isakson (R-Ga.) and Richard Burr (R-N.C.). Support for the brief in the House in addition to Congressman Walberg includes U.S. Representative Lynn Jenkins (R-Kan.).
Status of Case:
In January, U.S. District Court issued the second of two summary judgments that overturned DOL’s rule on third-party employers and then overturned the definition of companionship services. Excerpt of the ruling:
“The fact that the Department issued its Notice of Proposed Rulemaking after six of these bills failed to move is nothing short of yet another thinly-veiled effort to do through regulation what could not be done through legislation. Such conduct bespeaks an arrogance to not only disregard Congress’s intent, but seize unprecedented authority…”
The U.S. Department of Labor (DOL) Wage and Hour Division’s rulemaking entitled “Application of the Fair Labor Standards Act to Domestic Service,” would affect the companionship exemption to the Fair Labor Standards Act (FLSA).
The current companionship exemption allows the elderly and disabled to obtain the home care they need to remain independent without having to comply with the recordkeeping requirements that the FLSA imposes. Current law is a reflection of the will of Congress to protect both the interests of elderly and disabled care recipients who need affordable care along with those of caregivers who want predictable employment arrangements.
The companionship exemption defines direct service workers as domestic workers and allows them to work over 40 hours without triggering overtime. This allows the disabled and elderly to “self-direct” so they can hire and schedule whomever they want without restricting the worker to a 40 hour work week in order to avoid overtime requirements.
This helps home care recipients to recruit and maintain workers by providing their workers flexibility. It also helps limit the number of strangers coming in and out of the home and allows cost-effective supports like sleep-cycle support to be paid on a per night basis rather than hourly.
Quotes from Senator Roberts and Congressman Walberg:
“This rule is not practical, and attempts to impose burdensome and costly labor requirements in the home where standards must remain flexible due to the individual nature of care for those in need of companion care,” Roberts said. “This is regulatory overreach gone array.”
“For decades, Congress has preserved the broad exemption for companion care workers because it ensures seniors and individuals with disabilities have access to affordable care in the comfort of their homes,” said Walberg. “The Department of Labor’s attempts to eliminate the exemption will increase costs and limit access to in-home care for vulnerable Americans. The appeals court should not add to the regulatory burden of companionship services and hurt the families who rely on them for care.”