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Home Care Rule Court Decision: Some Changes, But Not Much

12/23/15

Home Care Rule Court Decision

Yesterday, the US District Court for the District of Columbia granted a partial motion for summary judgment to the plaintiffs in Home Care Association of America v.Weil. The Court also vacated the third party employer restriction as it applies to the companionship and live-in worker exemptions under the Department of Labor's Home Care Rule. 

What does this mean?

This means that if a worker otherwise qualifies as a companion or a live-in under the Rule, then third party sole or joint employers can use the companion and live-in exemptions as do private, individual employers. 

What doesn't this mean?

While it may be tempting to interpret this as "joint employment doesn't matter any more," this is not the case. Based on our current analysis, this summary judgmentDOES NOT CHANGE the implications of the Home Care Rule for workers that do not qualify as companions or live-ins based on the duties and circumstances of their work.

In other words, if a worker is providing personal care services and not living-in with the care recipient, he or she will almost always not qualify as a companion under the Rule's updated duties test of the companionship exemption. This updated duties test narrows the companionship exemption to workers who spend no more than 20 percent their time providing assistance with Activities of Daily Living (ADL) or Instrumental of Activities of Daily Living (IADL) and do not provide any "medically-related services." Therefore, as before this judgment, if a third party joint employer exists for the worker, the worker's hours across consumers must be aggregated and counted toward overtime and any travel time between consumers in a work day must be counted toward overtime while the worker is jointly employed. 

What will this judgment affect?

In participant direction, we expect this judgment to largely impact third party joint or sole employers of live-in workers. For many live-ins, the live-in exemption could now be taken, meaning those live-ins could be paid at least minimum wage, but not overtime, for hours worked over 40 in a week. The rules for determining the hours worked for live-ins, including those around sleep time and engaged to wait, are not impacted by this decision. 

In participant direction, not many workers are expected to qualify as companions under the companionship exemption, meaning for non live-in workers, this judgment will not change much for programs with third party joint or sole employers. 

Don't stop your effort

If you have been working to come into compliance with the Home Care Rule, do not interpret this judgment to mean that the entire rule is null and void. It is not. Only one part of the rule has been vacated, and it affects only a small percentage of workers in participant direction. 

While vacating makes portions of the law null and void, it is important to realize that the vacated provisions of the law are limited solely to the companionship services exemption and live-in domestic service employment exemptions. The Department of Labor has cautioned: 

As of January 1, 2015, one of the Final Rule's central changes, the revision of the outdated definition of "companionship services," will go into effect. The district court's opinion did not address this regulatory provision. Therefore, as of January 1, all employers of home care workers, including third party employers, will be obligated to consider the duties such workers perform in evaluating whether they must pay wages in compliance with the minimum wage and overtime requirements. 

What's next?

The Department of Labor is considering whether or not to appeal the decision and has 60 days within which to file an appeal if desired. It is important to note that this is a decision by a district court. If the Department of Labor appeals this decision, as it likely will, a court of appeals will review it. It is important for stakeholders to understand that there may not be a final decision until state budget processes are well underway, or even over. Therefore, we recommend that the regulated community continue its planning for compliance. 

 A copy of the decision is available in full at:  https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2014cv0967-21

As always, please contact us with any questions at: info@participantdirection.org