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DOL Delays Enforcement of Home Care Regulations, But Employees Are Still Entitled to Overtime

Several states and agencies expressed concern over the new federal home care regulations that require overtime premiums for companions and other home care workers that become effective January 1, 2015.  The officials running medicare are concerned because the 15-month’s notice the DOL provided was insufficient to enable proper planning for the regulations.  Several senators petitioned the DOL to change course and abandon the revised regulations.  The DOL announced Tuesday that:

After careful consideration, the department decided to adopt a time-limited non-enforcement policy. This approach will best serve the goals of rewarding hard work with a fair wage while not disrupting innovative direct care services. For six months, from January 1, 2015 to June 30, 2015, the department will not bring enforcement actions against any employer who fails to comply with a Fair Labor Standards Act obligation newly imposed by the rule. During the subsequent six months, from July 1, 2015 to December 31, 2015, the department will exercise its discretion in determining whether to bring enforcement actions, giving strong consideration to the extent to which states and other entities have made good faith efforts to bring their home care programs into FLSA compliance.

You can read the DOL’s full blog post here.

I have a couple of issues with the DOL’s position.  Telling employers that the DOL is not going to enforce the regulations could lead employers to believe they are not required to comply with the regulations.  This is simply not true.  While the DOL may choose not to enforce the regulations, the employees and employee groups can enforce the regulations. Employers that rely on the DOL’s lack of enforcement are still at risk, and can still be held liable for the unpaid overtime and liquidated damages.

I am also concerned with the DOL’s position that between July and December 2015, the department “will exercise its discretion in determining whether to bring enforcement actions.”  Does that mean after December 2015 the department will no longer exercise discretion?  It’s kind of like a city changing the sped limit on your street and telling you, “we might enforce this, we might not.”  I don’t think this half-measure method makes sense.  If you’re going to change the law then change the law.  Don’t change the law and then tell people you might or you might not enforce it.  If you determine that enforcing the law is not a good thing, then consider changing the law again, or altering when the new law goes into effect.

I will instruct my clients to follow the new regulations regardless of the DOL’s enforcement position.  You can bet eligible home care employees will sue employers that fail to pay overtime after 40 hours in the week after January 1, 2015.

If you have questions about the DOL regulations, the Domestic Workers Bill of Rights, or how the new regulations will impact you, your family, or your business, contact an attorney familiar with wage and hour laws in the elder care industry.

The Law Office of Phillip J. Griego
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
Original article by Robert E. Nuddleman, a former associate of The Law Office of Phillip J. Griego.
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