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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.”

Continue reading “Federal Judge Vacates USDOL’s New Definition of Companionship Services Under Final Rule” →

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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.”

Continue reading “Preliminary Injunction Decision By D.C. Court Due Wednesday, January 15, 2015” →

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

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

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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

Executive Summary:  The New York City Earned Sick Time Act (“the Act”) goes into effect today, April 1, 2014. The Act requires employers with at least five employees who work at least 80 hours per year in NYC to provide all such employees with at least 40 hours of paid sick time per year.

The New York City Department of Consumer Affairs (“DCA”) has posted FAQs and guidance clarifying the Act’s requirements for both employees and employers on its website at http://www.nyc.gov/html/dca/html/law/PaidSickLeave.shtml.

The DCA has also posted sample Notices of Employee Rights in English, Spanish, Italian, and Russian. Employers must provide written notice of employees’ rights under the Act in English and the employee’s primary language to existing employees by May 1, 2014 and to new employees at the commencement of their employment.

The Act does not require employers to provide additional paid sick time if their existing paid leave policy (regardless if leave is called vacation, sick, personal, or paid time off) meets the requirements of the Act. However, covered employers should immediately review and revise their paid time off policies and employee handbooks to assure they comply with the Act. In particular, employers may need to expand the permitted reasons for which employees may use sick time, adjust the sick time accrual rate and carry over policy, make sick time available to both part-time as well as full-time employees, and ensure that they are maintaining proper records demonstrating compliance with the Act for at least three years.

If you have any questions regarding this Alert or amendments to your current paid time off policies, please contact the author, Stephen Zweig, Managing Partner of FordHarrison’s New York City office, at szweig@fordharrison.com. For more information on the requirements of the NYC Earned Sick Time Act, please refer to our previous legal alert dated March 13, 2014 at http://www.fordharrison.com/9870.

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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

Executive Summary: On February 26, 2014, the New York City Council passed an amended version of the New York City Earned Sick Time Act. This amended version, effective April 1, 2014, requires that companies with as few as five employees provide at least 40 hours of paid sick time per year. Note: The original version of the Act only covered employers with 15 or more employees and provided a staggered, gradual roll-out.

Here’s what businesses need to know to comply with the new law:

Coverage of the Act

Employers with five employees or more who work at least 80 hours in a calendar year must provide these employees with paid sick time. Note: Companies with fewer than five employees who work at least 80 hours in a calendar year must provide these employees with unpaid sick time in accordance with the requirements of the Act.  

Eligible Employees

Employees who work at least 80 hours in a calendar year in New York City are eligible to accrue paid sick time. Continue reading “NYC Paid Sick Time Law Amended to Cover Employers With As Few As Five Employees March 13, 2014” →

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

Written by Stephen E. Zweig

9/19/2013

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.

What Has Changed? 

Reversing a decades long interpretation, the DOL’s Final Rule states: “(t)he new regulatory text precludes third party employers (e.g. home care agencies) from claiming the (companionship) exemption for companionship services or live-in domestic service employees.”  Thus, under the new regulation, all agency-employed direct care workers who are currently considered exempt will be protected by the FLSA’s minimum wage, overtime, and record-keeping requirements.

What Effect Will the Changes Have?

The Rule exposes home care agencies to significant wage and hour liability in each of the following areas:

  • overtime for all hours over 40 in a workweek at time and one-half a worker’s regular rate (the regular rate includes hourly differential pay that will increase the rate on which overtime is calculated);
  • wages at a worker’s regular rate for additional hours claimed on 24-hour cases;
  • wages for travel time between cases or to training and medical exams;
  • wages for calls to work during “duty-free” time;
  • wages for in-service training time; and
  • wages for required annual medical exam time.

Continue reading “Companionship Exemption for Agency Employed Home Care Workers Ends Effective January 1, 2015” →

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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?

Written by Stephen E. Zweig

7/10/2013

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.

How Did This Happen? 

On December 27, 2011, the DOL issued proposed regulations to amend the companionship exemption under the FLSA.  Despite a 36-year history of applying the exemption to home care agency workers, the revised regulations would limit its coverage to workers employed directly by a client or family.

In justifying its stance, the DOL claimed that those “employed by home care staffing agencies are not the workers Congress envisioned when it enacted the companionship exemption, e.g. neighbors performing elder sitting, but are instead professional caregivers” and the DOL “is no longer convinced that its prior reading (of the exemption) was the best one.”  The DOL admitted that the revised regulations amount to “the transfer of income from businesses and their owners to workers,” but claimed that this redistribution of income is warranted and “is not likely to have a significant economic impact on a substantial number of small entities.”

This “about face” upends the DOL’s earlier defense of a broad exemption covering agency-employed home care workers, which resulted in a unanimous U.S. Supreme Court decision in 2007 deferring to the DOL’s expertise and upholding that exemption.

Continue reading “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?” →