For the first time since Congress passed FLSA in 1938, home health aides, also known as domestic service workers, are now eligible for minimum wage and overtime pay. Earlier this month, Chief Justice Roberts denied Home Care Association of America’s request for stay of issuance of mandate in the case Home Care Association of America v. Weil.
Home Care Association made waves across the labor law and health care industry this past August when the D.C. Circuit Court upheld Department of Labor (DOL) regulations that extend minimum wage and overtime protections to home health aides. Home Care Association may still appeal, but legal experts muse that even if the appeal is granted, it is unlikely to prevail.
Labor activists heralded the decision as a momentous occasion for the domestic work industry. The home health aide industry encompasses nearly two million domestic workers—and expanding. It is the fastest-growing occupation in the nation. Domestic workers typically operate behind closed doors in a highly unregulated economy with little workplace protections. As a result, labor trafficking and exploitation are consistent concerns in the industry.
In the decades since its inception in 1938, the Fair Labor Standards Act (FLSA) has left out home care aides and exempted them from wage-and-hour requirements. Some labor activities charge that the exemption is driven by racism against a class of workers largely composed of immigrants and women of color. The FLSA exemption meant that employers were not required to pay domestic workers minimum wage or compensate them for working overtime. The D.C. Circuit Court decision sweeps domestic workers under FLSA—and thereby formalizes the work of a sector that has been historically overlooked.
The Home Care Rule went back into effect on November 12, 2015. Between now and December 31, 2015, the DOL is adopting a relaxed enforcement policy. In a policy statement, the DOL said that it will “exercise prosecutorial discretion” during this period. When making decisions as to whether to bring enforcement actions, the DOL will consider the extent to which States and other entities have “made good faith efforts to bring their home care programs into compliance” with the Home Care ruling. DOL will commence more rigorous enforcement in 2016.
The ease-in period buys more time as home health organizations and hospitals make adjustments. A common source of complaint and frustration is funding. Institutions funded by payers like Medicare and Medicaid are still at a loss as to how they will accommodate the overtime pay mandates into their budgets. In the first industry-led report since the D.C. Circuit Court decision, several membership associations released a set of recommendations outlining potential next-steps for home health providers. The report cautioned states from reacting adversely, such as prohibiting all overtime hours. It also suggested that home health institutions work with state legislators to make more room in their state budgets for home health aide payments.
The D.C. Circuit Court decision is clearly a win for labor rights activities and domestic workers. But with budgetary challenges and a potential Supreme Court appeal on the line, whether and to what extent the Home Care rule will be enforced remain to be seen.