Posted Oct. 7, 2014 | This afternoon, the Department of Labor (DOL) Wage and Hour Division gave notice of a 12-month, time-limited non-enforcement policy with regard to the Oct. 1, 2013 Final Rule that extended Fair Labor Standards Act (FLSA) protections (e.g., minimum wage and overtime) to most home care workers, which becomes effective Jan. 1, 2015.
Overview of the Notice
The notice does not change the Jan. 1, 2015 effective date. The Labor department advises they are not extending the effective date because (1) the Final Rule allowed an “unprecedented 15 months after publication” to make adjustments necessary to come into compliance with the new FLSA obligations, and (2) many employers, including states, are prepared to pay home care workers under the new obligations.
The notice advises that the Labor department “will not bring enforcement actions against any employer as to violations” of the new obligations for six months, or from Jan. 1 to June 30, 2015. Any information suggesting potential violations, however, “will be used as an opportunity to provide additional technical assistance to States and other potential employers.”
After July 1, 2015, the Labor department will enforce the Final Rule at its discretion for the six months following that, or from July 1 to Dec. 31, 2015. In particular, states working to bring their Medicaid home care programs into compliance may be extended discretion.
Overview of the Final Rule
The Final Rule brings home care workers under the umbrella of the FLSA, passed in 1938 to establish the 40-hour workweek, minimum wage and time-and-a-half pay for overtime. Although Congress extended these protections to virtually all domestic service employees in 1974, home care workers have been excluded since then under the so-called companionship services exemption, with the Labor department left to define what services an exempt companion could perform. By modifying that definition, the Oct. 1, 2013 Final Rule prohibited third-party employers of domestic service employees from claiming that exemption from minimum wage and overtime requirements, as well as the live-in domestic service employee exemption from overtime compensation.