Judge strikes down new in-home worker protections

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In-home worker protections struck down

The U.S. District Court for the District of Columbia ruled December 22 that the Obama Administration exceeded its executive authority when it promulgated new rules extending minimum wage and overtime protections to an estimated two million previously uncovered caregivers.

As a result, the regulations, which were supposed to go into effect January 1, are vacated, although the Department of Labor has 60 days to appeal the decision.

In 1974, Congress amended the Fair Labor Standards Act to include domestic service employees. However, it exempted the law’s minimum wage and overtime protections from people who “provide companion services for individuals who (because of age or infirmity) are unable to care for themselves.” It also exempted overtime protections for people “employed in domestic service in a household and who resides in such household.”

Due to the expansion of the elderly population and people with disabilities receiving home-care services, these so-called “companion care” and “live-in domestic employee” exemptions now encompass more than two million people.

The DOL proposed new regulations in 2011 that would close these loopholes for all workers employed by third-party employers, which represent about 90 percent of currently uncovered caregivers. The exemptions would remain for workers employed directly by the household receiving services.

Final rules were released in October 2013 and were set to go into effect at the beginning of the new year, although the DOL already had announced it would delay enforcement for six months.

The Home Care Association of America, the International Franchise Association and National Association for Home Care and Hospice filed a lawsuit against the DOL in June 2014, on the basis that the 1974 amendments did not provide the DOL discretion to distinguish between employees hired by third parties or households.

The District Court agreed, finding that the rules ran contrary to Congress’ intent in passing the law and thus were outside the scope of the executive branch’s authority.

“Congress surely did not delegate to the Department of Labor here the authority to issue a regulation that transforms defining statutory terms into drawing policy lines based on who cuts a check rather than what work is being performed,” Judge Richard L. Leon wrote in the decision.

These exemptions gained national attention in 2007, when the Supreme Court unanimously ruled that Evelyn Coke, an in-home care worker who worked 70 hours a week, was not legally entitled to overtime pay under the 1974 amendments.

Since then, three bills have been introduced in the Senate, as well as three in the House of Representatives, that would amend the law to close the loophole. None of these bills has been voted out of committee.

For Judge Leon, this legislative background was further evidence of his view that the Obama Administration, in passing the rules, attempted to circumvent Congress’ authority.

“This unequivocally represents a lack of Congressional intent to withdraw this exemption from third-party employers,” he wrote. “The fact that the Department issued its Notice of Proposed Rule Making after all six of these bills failed to move is nothing short of yet another thinly veiled attempt to do through regulations what could not be done through legislation.

“Such conduct bespeaks an arrogance to not only disregard Congress’ intent, but seize unprecedented authority to impose overtime and minimum wage obligations in defiance of the (law’s) plain language.”

3 responses to “Judge strikes down new in-home worker protections

  1. This article fails to address the perspective of many PWD and exaggerates the numbers on the other side. Many, many family care givers use third party companies to deal with the morass of regulations and paperwork related to caregiving for money. It’s really important that you provide real statistics for the number of people ACTUALLY making less than minimum wage, not “potentially affected.” I’m “potentially affected” even though I currently only work 16.75 hours a week. I make $11.00 and hour. But we use a 3rd party company because its easier. The real crisis Obama created was for people with significant disabilities who run 10-12 hour shifts or 24 hour shifts (including sleep time) chaos would reign for PWD if employers suddenly had to find new/non-family workers to avoid overtime charges for those employees/family working longer shifts. I would guess most care givers make at least minimum wage, and some of my quad friends pay $16. And expect 12/24 hour shifts. Very biased article. First one! But very unbalanced.

  2. Though it is clear homecare workers deserve an increase in wages and benefits the DOL rules which were developed with no input from the organized disability community would, in the majority of states, not result in the increase they so deserve. The issues is not should homecare workers be paid more, the issue is, would states who set the Medicaid rates for home and community service programs increase their budgets to pay the DOL rules time and a half. The answer is no! Not only will they not pay the time and a half, they will reduce the hours of attendants who worked in an agency or consumer directed delivery system to no more than 39 1/2 hours so they won’t have to pay the overtime wages. Ironically this will potentially harm people with the most significant disabilities. Medicaid rate setting is not a free market. ADAPT and NCIL and many other organizations attempted to get this message to the DOL leadership with absolutely no success. The unions rather than working with the organized disability community, label ed those who had legitimite concerns as either anti worker, anti union and part of the greedy homecare industry.
    The DOL rules need to be retracted and a new process, including the disability community should begin.

    Bob Kafka
    ADAPT of Texas
    Personal Attendant Coalition of Texas

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