Federal Judge Vacates USDOL’s New Definition of Companionship Services Under Final Rule

Written by Stephen E. Zweig.

1/14/2015

This afternoon Judge Richard Leon of the U.S. District Court, District of Columbia, issued a decision vacating the U.S. Department of Labor’s Final Rule on Domestic Service Employees. He reasoned that: the DOL exceeded its authority by promulgating a rule that essentially defined the “companionship services” exemption out of existence as applied to the vast majority of home care employers and, by so doing, contravening Congress’ intent with regard to the exemption. Judge Leon’s decision concluded “the Department is trying to do through regulation what must be done through legislation.”

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Application of the Fair Labor Standards Act to Domestic Service [10/1/2013]

For the complete article, please visit http://webapps.dol.gov/FederalRegister/HtmlDisplay.aspx?DocId=27104&AgencyId=14&DocumentType=2.

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 552

RIN 1235-AA05

Application of the Fair Labor Standards Act to Domestic Service

AGENCY: Wage and Hour Division, Department of Labor

ACTION:      Final Rule

SUMMARY: In 1974, Congress extended the protections of the Fair Labor Standards Act (FLSA or the Act) to “domestic service” employees, but it exempted from the Act’s minimum wage and overtime provisions domestic service employees who provide “companionship services” to elderly people or people with illnesses, injuries, or disabilities who require assistance in caring for themselves, and it exempted from the Act’s overtime provision domestic service employees who reside in the household in which they provide services. This Final Rule revises the Department’s 1975 regulations implementing these amendments to the Act to better reflect Congressional intent given the changes to the home care industry and workforce since that time. Most significantly, the Department is revising the definition of “companionship services” to clarify and narrow the duties that fall within the term; in addition third party employers, such as home care agencies, will not be able to claim either of the exemptions. The major effect of this Final Rule is that more domestic service workers will be protected by the FLSA’s minimum wage, overtime, and record keeping provisions. Continue reading

Preliminary Injunction Decision By D.C. Court Due Wednesday, January 15, 2015

Written by Stephen E. Zweig.

1/9/2015

This afternoon, Judge Richard Leon, who had temporarily stayed the U.S. Department of Labor’s Final Rule on Domestic Service Employees until January 15, 2015, said that he would issue a ruling on a preliminary injunction next Wednesday, January 15, 2015.  The case is Home Care Association, et. Al., v. David Weil, et. al. At issue is the U.S. DOL’s narrowing of the “companionship services” exemption.

The Final Rule, which was to take effect January 1, 2015, significantly narrowed the companionship services exemption. For decades, a  home care worker has been considered an exempt “companion” even if s/he primarily provided “personal care” services. The Final Rule eliminated the exemption if the worker spent more than 20% of hours worked each work week performing assistance with “activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring) and instrumental activities of daily living, which are tasks that enable a person to live independently at home (such as meal preparation, driving, light housework managing finances assistance with the physical taking of medications, and arranging medical care).” The Final Rule also eliminated  the exemption if the worker performed any “medically related services,” such as “catheter care, turning and repositioning, ostomy care, tube feeding, treating bruising or bedsores, and physical therapy…” or any general household services, such as “vacuuming, dusting, or cleaning up after individuals other than the elderly or ill family member.”

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U.S. District Court Blocks U.S. DOL’s New Definition of Companionship Services Under FLSA

Written by Stephen E. Zweig.

1/2/2015

Executive Summary:  The U.S. District Court for the District of Columbia has issued a Temporary Restraining Order (“TRO”) blocking the U.S. Department of Labor (“DOL”) from enforcing the new definition of Companionship Services in its Final Rule on the Application of the Fair Labor Standards Act to Domestic Service Order (“Final Rule”), which was set to take effect, January 1, 2015. On December 22, 2014, this same court had vacated the Final Rule’s differing treatment of home care agencies versus direct-hire employers, such as individuals, families, and households, stating that both should benefit similarly from the “companionship services” and “live-in” exemptions under the Fair Labor Standards Act (“FLSA”). To determine whether a Preliminary Injunction should issue, the court will hold a hearing on January 9, 2015.

The DOL’s Final Rule:  Reversing a decades long interpretation, The DOL’s Final Rule stated: “[t]he new regulatory text precludes third party employers (e.g., home care agencies) from claiming the exemption[s] for companionship services or live-in domestic service employees.” The DOL claimed that those “employed by home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption, (i.e., neighbors performing elder sitting) but are instead professional direct care workers” and the DOL “is no longer convinced that its prior reading (of the exemption) was the best one.” Continue reading

Blocked by U.S. District Court — Elimination of Companionship Exemption for Home Care Agencies

December 31, 2014 by Stephen E. Zweig

The U.S. District Court for the District of Columbia has issued a Temporary Restraining Order (“TRO”) blocking the U.S. Department of Labor from enforcing the new definition of Companionship Services in its Final Rule on the Application of the Fair Labor Standards Act to Domestic Service Order (“Final Rule”), which was set to take effect tomorrow, January 1, 2015.  Last week, on December 22, this same court vacated the Final Rule’s differing treatment of home care agencies versus direct employers, such as individuals, families, and households, stating that both should benefit similarly from the “companionship services” and “live-in” exemptions under the Fair Labor Standards Act (“FLSA”). Continue reading

Can Your Agency Afford Sleep-Ins?

Written by Stephen E. Zweig.

12/11/2014

Who is a Sleep-In Worker?

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.

Under the NYS Department of Labor’s interpretation of New York law, a Sleep-In worker is one who works a 24-hour shift. This worker differs from a “Residential Employee” who lives on the premises of the employer and does not have his or her own home.

What Are “Hours Worked” By a Sleep-In Worker?

Under the Department of Labor’s Final Rule, hours worked by a Sleep-In worker who does not reside on the employer’s premises on a permanent basis or for extended periods of time may exclude a sleeping period of no more than eight hours provided that (1) adequate sleeping facilities are furnished to the worker and (2) the worker receives at least five hours of uninterrupted sleep time. Hours worked also may exclude meal periods, provided the worker is relieved from duty, free to leave the premises, and free to use the time effectively for his or her own purposes.

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NYC Paid Sick Time Law Effective Today, April 1, 2014

Written by Stephen E. Zweig

4/1/2014

NYC Paid Sick Time Law Amended to Cover Employers With As Few As Five Employees March 13, 2014

Written by Stephen E. Zweig

3/13/2014