DOL’s New Home Care Final Rule: What Home Care Employers Should Start Doing NOW
On August 21, 2015, the D.C. Circuit Court of Appeals reaffirmed the validity of Department of Labor’s (DOL) Home Care Rule, which extends minimum wage and overtime protections to most home care workers. The Rule clarifies what constitute Fair Labor Standards Act (FLSA)-exempt “companionship services” and it excludes third-party employers from claiming the exemption from minimum wage and overtime that applies to the more narrowly-defined occupation of companions or the overtime exemption that applies to live-in domestic workers.
Home care employers must ensure that they fully understand the Rule change and its implications for various common employment practices in the home care industry. Employers have also raised questions about the effect of the Circuit Court ruling, US DOL’s enforcement policy and strategy before and after the ruling, and the Rule’s interaction with state and local laws. Given the Rule’s undeniably significant implications, it is imperative for home care agencies to develop a comprehensive strategy that ensures compliance with federal and state wage and hour laws and while minimizing business impact.
In this two-hour LIVE Webcast, a panel of distinguished professionals and thought leaders assembled by The Knowledge Group will help home care agencies understand the various aspects of DOL’s New Home Care Final Rule. They will provide an in-depth discussion of this significant topic. Speakers will also offer best practices in developing and implementing an efficient compliance policy to reduce the risk of litigation and minimize business loss while maximizing profit margins.
Key topics include:
- The DOL Home Care Final Rule – An Overview
- Enforcement Approach
- Risks and Pitfalls
- Implications to Your Business
- Regulatory Forecasts
- Best Compliance Strategy
Sarah Leberstein, Senior Staff Attorney
National Employment Law Project
- The US DOL home care rule extended FLSA coverage to almost all of the nation’s 2 million + home care workers, virtually all of whom were previously exempt: all third-party home care employers are categorically covered by FLSA and all workers employed solely or jointly by a third party employer are protected by FLSA’s minimum wage and overtime rules; most home care workers employed solely by an individual or private household have gained coverage because their work duties do not fall within the new definition of exempt “companionship” services; only a small group of workers who both (1) are solely employed by a private household and (2) primarily provide fellowship and protection remain exempt.
- The rule’s effective date is January 1, 2015: On December 22, 2014, the D.C. district court found the third-party employer prong on the rule to be invalid and vacated it. Home Care Assn. of America v. Weil, 76 F.Supp.3d 138 (D.D.C. 2014). But when the D.C. Circuit reversed eight months later, the effect was to restore the rule’s original effective date of January 1, 2015.
- Industry practices developed when the exemption may constitute violations of FLSA’s requirements: Not all home care employers have paid workers for work performed before and/or after their official shift, for travel time between clients, or for all work hours on 24-hour “live-in” shifts but have to do so now. Arrangements to pay workers a flat per diem for 24-hour shifts also raise red flags.
- Employers should pay attention to potential joint employment scenarios and be wary of arrangements that purport to classify home care workers as independent contractors; home care workers are rarely, if ever, true independent contractors.
S. Brent Wakefield, Member
Barber Law Firm
- The problem with daily/per diem rates (and computing damages) under the old rule and how it ties in with the new rule.
- How the Final Home Care Rule effects employers with finite funding sources.
- Ways to abide by minimum wage and overtime rules under new rule.
- Work/Sleep Agreements to set forth parameters of work day.
- Natural Support Agreements to set forth parameters of work day.
- Handbook matters to consider for failing to abide by parameters.
- Prognostications on future litigation resulting from new rule.
Joseph Dougherty, Principal
Hinman Straub P.C.
- DOL Enforcement actions
- Interplay between local rules and home care changes
Who Should Attend:
- Home Care Employers
- Home Health Care Employees
- Health Care Law Attorneys
- Employee Benefits Attorneys
- Employment and Labor Lawyers
- Healthcare Service Providers
- Labor Counsel
- HR Executives
- Other related/interested Professionals and Organizations
S. Brent Wakefield is a member of the firm’s Employment Law Practice Group. In his practice, he assists businesses and non-profit organizations in defending employment discrimination and wage and hour disputes. He is familiar with the investigative procedures of the Equal Employment Opportunity Commission, Department of Labor, and National Labor Relations Board, and has helped clients navigate various investigations and administrative inquiries. Prior to joining the Barber Law Firm in 2007, he served in the United States Air Force Judge Advocate General’s Corps. Specifically, he served as the Chief of Military Justice prosecuting numerous courts-martial at Shaw Air Force Base, Sumter, South Carolina. Brent then served at Randolph Air Force Base in San Antonio, Texas, concentrating on Federal Labor Law issues, including representing management in EEOC administrative hearings. Finally, he spent three years at Sheppard Air Force Base, Wichita Falls, Texas, defending medical malpractice cases against the Air Force and teaching healthcare professionals on numerous medico-legal topics.
S. Brent Wakefield is a member of the firm’s Employment Law Practice Group. In his practice, he assists businesses and …
Joseph Dougherty is a member of the Hinman Straub’s Labor and Employment, Litigation, and Government Relations departments. He represents a wide variety of clients in addressing issues that arise in and out of the workplace and in litigation matters.
Mr. Dougherty regularly advises employers and employees on labor and employment as well as commercial litigation matters. He has represented clients in administrative matters before the United States Department of Labor, Equal Employment Opportunity Commission (EEOC), Financial Industry Regulatory Authority (FINRA), National Labor Relations Board (NLRB), NYS Division of Human Rights (NYSDHR), NYS Department of Labor, NYS Department of Tax and Finance, NYS Retirement System, NYS Public Employment Relations Board (PERB), NYS Workers’ Compensation Board, NYS Department of Health, the state legislature and Federal and state courts.
Joseph Dougherty is a member of the Hinman Straub’s Labor and Employment, Litigation, and Government Relations departments. He represents a …
Sarah Leberstein is a senior staff attorney with the National Employment Law Project, a research and advocacy group for low-wage workers and the unemployed. Sarah’s work focuses on improving and enforcing labor standards, with particular emphasis on home care and domestic workers and the on-demand economy, outsourcing and independent contractor misclassification. Her publications include Upholding Labor Standards in Home Care: How to Build Employer Accountability into America’s Fastest-Growing Jobs (2015) and Rights on Demand: Ensuring Workplace Standards and Worker Security in the On-Demand Economy (2015). Her writings and commentary have appeared in major national media, including The New York Times, National Public Radio, US News and World Report, and many others. Sarah has testified before city and state legislatures and at congressional hearings, was an Equal Justice Works fellow from 2008-2010, and is a graduate of Fordham Law School and Wesleyan University.
Sarah Leberstein is a senior staff attorney with the National Employment Law Project, a research and advocacy group for low-wage …
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About Barber Law Firm
The Barber Law Firm was founded by A.L. Barber in 1910. Over the past century, we have been privileged to serve as counsel and litigators to individuals and many of the largest and most successful companies in Arkansas and around the world. Our insight gained through decades of trial experience has enabled us to grow our practice, deepen our knowledge base and solidify our capacity to provide full-service representation. While we are proud of our past, our focus is on the future. Our goal is to provide our clients — from the guy next door or the small start-up company, to the multinational conglomerate — personal service of the highest quality. Our approach is based upon common sense, trust and integrity.
About Hinman Straub P.C.
For more than 80 years, Hinman Straub has been a leader in providing individual, institutional and corporate clients with a comprehensive array of legal and government relations services that few other firms can match. Located in the heart of New York State Government, Hinman Straub provides a full range of services – advocating before the New York Legislature and state regulatory agencies, drafting legislation, ensuring smooth implementation of new laws, guiding clients through the government regulatory process and litigating when necessary.
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