Federal Appeals Court Denies Motion For Stay from Home Care Association
Our previous post titled, “Home Care Rule Enforcement: November 13, 2015” referenced details regarding the proposed effective date of the Fair Labor Standards Act Home Care Rule. This was a proposed effective date because of the possibility that the home care association would file a stay of the appeals court decision on August 21, 2015. The motion for this stay occurred, and it was promptly denied by a federal appeals court in Washington DC, issued on September 18, 2015. The following news release article below is credited to CDCAN, and elaborates on how the federal appeals court denied motion for stay from home care association, as well as the possibility of another appeal.
FEDERAL APPEALS COURT DENIES MOTION FOR STAY FROM HOME CARE ASSOCIATION – APPEAL TO US SUPREME COURT WILL CONTINUE BUT WITHOUT A STAY OF APPEALS COURT ORDER
SACRAMENTO, CA [CDCAN LAST UPDATED 09/18/2015 03:06 PM] – Barring another appeal, Federal overtime regulations for previously exempted home care workers will go into effect in mid-November following a federal appeals court order issued today in Washington, DC that denied a motion by home care associations for a stay of the appeals court decision of August 21st that ruled in favor of the US Department of Labor, reinstating those regulations that a lower federal court in January had struck down. The appeals court also issued an order denying a motion by the US Department of Labor that asked the court to expedite or speed up the time period when its August 21st decision would take effect.
Under normal appeals court rules, a decision by the appeals court takes effect 52 days after it is handed down (45 days to allow either party to appeal its decision, and another 7 days after that for the court clerk to file the decision to make it official). That would make the August 21st court order effective on October 13th. However the US Department of Labor previously posted an announcement on its website that the federal regulations on overtime for previously exempted workers would take effect 30 days AFTER the August 21st court order went into effect, which would mean sometime in mid-November.
The plaintiffs – those who filed the original lawsuit trying to stop the regulations – had wanted a longer delay or a stay of the August 21st ruling while they appealed the case to the US Supreme Court. That appeal to the high court will continue – but the federal regulations, barring other legal action – can take effect while that appeal to the US Supreme goes forward.
In California, state officials previously said it would implement the state overtime provisions when pending lawsuit was resolved. Some officials have indicated that “resolved” means “clarified”, so that if the federal appeals court denies the request (motion) of the home care associations to further delay its order beyond October 13th while the case is being appealed, that the State would seemingly have the authority or green light to implement overtime 30 days or so after that when the federal government indicated it would implement the regulations (barring a further delay by the appeals court). However no official word from state officials on implementation has been released.
TEXT OF THE APPEALS COURT ORDER ISSUED TODAY
No. 15-5018 September Term, 2015
1:14-cv-00967-RJL
Filed On: September 18, 2015
Home Care Association Of America, et al.,
Appellees
v.
David Weil, sued in his official capacity,
Administrator, Wage & Hour Division, et al.,
Appellants
BEFORE: Griffith, Srinivasan, and Pillard, Circuit Judges
O R D E R
Upon consideration of appellees’ motion for stay of the mandate pending the filing of a petition for writ of certiorari, the opposition thereto, and the reply; and appellants’ motion for expedited issuance of the mandate, the opposition thereto, and the reply, it is ORDERED that the motions be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
QSP has OT Tools
We have specific OT tools for agencies that have been leveraging the Wage Order 15 and the personal attendant overtime exemption, and now have to submit to this new federal regulations. Contact us to see how we can help!
#KeepThePromise, Keep Up The Pressure
Even though the developmentally disabled community, #KeepThePromise and #LantermanAct, has been neglected, again, there is still action that can be taken in hopes of seeing an increase in funding for service providers throughout the state of California. Another terrific article (below) by Greg deGiere, Public Policy Director at the Arc California, clearly articulates how we can all press in to save developmental services using very practical steps. We must keep up the pressure in hopes that the Legislature will #KeepThePromise.
What Now?
“Dear Friends,
I’ve gotten a lot of emails asking what people can do now to keep the pressure on the Legislature to put their votes where their mouths are and save our developmental service system.
Thank you for asking.
The state senators and assemblymembers are out of the Capitol until January — unless they come back to pass a bill to stop our services from collapsing, as they should. Most of them will spend most of their time in their home districts, somewhere around where you live. This is our chance to up their awareness of us even more.
This following suggestions are based on my years of working for legislators and seeing how people at the grassroots sometimes succeed in influencing them. And they’re based on the facts that, as everybody knows, out of sight is out of mind, but the squeaky wheel sometimes gets the grease. Sometimes even a few determined people can get what they need this way, and I know our community has a lot more than just a few determined people.
And frankly, they’re also based on my own frustration and, OK, anger with the fact that the Legislature still hasn’t fixed the problem.
So, if you’re really committed to saving our services, and you are able, here’s how to spend some time from now through Christmas ….
Find out about all of your senator’s and assemblymember’s town hall meetings and other public events, and go to all of them. You can find their town halls and some other events on their web sites, and with some research you should be able to find other events, too.
If you don’t know who your legislators are, they probably don’t know who you are, either, and it’s time for them to find out. Click here.
Go prepared to talk. Take some friends with you — even if they’re too scared to talk, they can cheer when you do. And you can all hold up signs.
Don’t be rude to your legislators or treat them as enemies or stupid. They aren’t. Treat them as if they deserve respect, which they do, and as if you deserve the same respect from them, which you do, too.
Speak your mind, even if your voice shakes.
Start by thanking them for being supportive in the past, if they have been (as most have, some a lot). But make it clear we need them now more than ever. Our service system is falling apart, and despite their best efforts, the Legislature has done exactly NOTHING to stop it. They’ve tried, but they have to try a lot harder and smarter.
Tell them about yourself (if you’re a person with a developmental disability) or about the people you love and those your serve (if you are a family, member, friend, or service provider). Show them pictures of your loved ones.
Tell them we can’t wait until 2016 — the Legislature needs to act this year because the services are falling apart now. We don’t know how many more services will be lost forever if they keep waiting.
If they try to blame the deadlock on the other party, tell them they’re probably right. (Honestly, they probably are, there’s plenty of blame to go around.) But ask your legislator what he or she is doing to talk to members of the other party and reach a compromise, which is the only way we’ll ever get anything.
If they try to blame it on Governor Brown, you can agree with them wholeheartedly. He’s been abominable. But tell them it’s time for them to stand up to Jerry Brown — including by being willing to override his potential veto of the Democratic-Republican compromise bill they need to develop and send him. Standing up to Brown will be a lot harder for the Democrats than for the Republicans, but we didn’t elect them to do easy things.
Then go to the next event. Repeat what you have to say, and ask them what they’ve done since the last time.
If there’s no time for the public to talk at one of these events, hold up your signs. If it’s a campaign fundraiser and you can’t afford to pay to go, or if it’s some other private event, stand outside with your signs so your legislator and all their supporters can see.
If your legislators are among the few who are unresponsive to all this, and the fall is slipping away with still no action, go stand outside their local offices with your signs. Call the media. Tweet pictures. Then come back again the next week — and every week.
And keep it up all fall. It gets easier every time you try it.
Sounds like it will take a lot of time and energy and courage, doesn’t it? Yes, it will. The mothers who pestered Frank Lanterman and all the other legislators into passing what because the Lanterman Act didn’t get what they wanted by being quiet.”
Thank you again for asking.
And thank you for your advocacy.
Greg
One good way to keep track of what’s happening this fall is to subscribe to The Arc’s Monday Morning Memo. Click here for that.
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Save Developmental Services in California
The fight continues to save Developmental Services in California. After many, many months of advocating for a 10% across-the-board increase to save developmental services, service providers throughout the state have been at their loudest this past week. A crucial bill was introduced by Senator Ed Hernandez, SB x2-14, that would increases taxes on tobacco, and the resulting profits would be used to fund service for the 290,000 clients that are impacted from a budget that has not seen an increased in a very long time. This bill, however, got halted in the Senate special session. Please read the article below by Greg deGiere, Public Policy Director at the Arc California, who explains in a bit more detail, and how to press in to save developmental services!
The Fight Goes On
“Dear Friends,
So what happened in the Capitol last week in the fight to save our developmental services?
The bad news is that the Legislature didn’t take any action before going home Friday night. The final push stalled by the end of the day, leading to the Democrats and Republicans angrily blaming each other for why they still couldn’t do anything for our community.
The good news is that they didn’t adjourn the special legislative session Friday as they had planned to — so the Legislature will officially be in session even though they aren’t here, and the legislators can be called back to Sacramento to vote if there’s a deal. And they created a Senate-Assembly conference committee with members of both parties to work on it this fall.
The other good news is that our community has built more political power — and put it into action in the Capitol on this — than I’ve seen any time in my almost seven years as a professional advocate for you.
Thanks to our community’s united effort for the last year, climaxing with a flood of calls to key legislators last week, every senator and assemblymember now is painfully aware of the problem and that we need to fix it before the system completely collapses. And they all feel pressure from the voters they represent to get it done this year. When they start complaining about how many calls they got, you know we have their attention.
Senator Ed Hernandez, who led the charge for us at the end, will be on the Senate-Assembly committee. So will Assemblymember Rob Bonta, who we know gets it and who put his vote where is mouth is in the budget process in June. We don’t know who else will be on the committee.
So the outcome is that our service system will continue to disintegrate while the fight go on.
One potentially very positive development last week was that Senator Hernandez said that his goal is for the Legislature to develop a bill to solve the problem and pass it to the governor for his signature or veto – the first time a legislative leader has publicly acknowledged that they should pass a bill whether Jerry Brown likes it or not. And since it will likely be a comprehensive bill that also fixes the MediCal funding program, which Brown wants a lot, it’s very unlikely he would veto it over our relatively small piece.
By the end of the night Friday, I was as angry as everybody else around here. Even after some rest this weekend, I still get mad when I think much about it. But the fact is that we’re getting closer to a real solution, and the key is to keep up the pressure – not give in to cynicism and fatigue, no matter how tempting.
So you’ll be hearing more from us in the coming weeks. And thank you for your advocacy.”
Greg deGiere
Public Policy Director
The Arc & United Cerebral Palsy California Collaboration
1225 Eighth Street, Suite 350, Sacramento, CA 95814
Thank you to all of you who have been actively supporting! You can follow our tweets on this matter and more @quicksolveplus
Home Care Rule Enforcement: November 13, 2015
Our most recent blog post referenced a likely effective date for the Fair Labor Standards Act Home Care Rule. Please read the article and opinions below by the National Resource Center for Participant-Directed Services that details the Home Care Rule Enforcement time frame of November 13, 2015.
DOL Announces Home Care Rule Enforcement Date
“The US Department of Labor announced today (9/2/2015) that Home Care Rule enforcement will begin 30 days after the appellate court decision’s effective date of October 13.
Therefore, the Home Care Rule will be enforced beginning November 13, 2015. Participant direction stakeholders should prepare for compliance now. Legal experts agree that further court action related to the Home Care Rule litigation is unlikely, so it is unlikely that the effective date and enforcement date will change.
Before Judge Richard Leon temporarily struck down the Rule, DOL had previously announced a period of selective enforcement from July 1 to December 31, 2015. “Selective enforcement” means that DOL plans to “exercise prosecutorial discretion in determining whether to bring enforcement actions, with particular consideration given to the extent to which States and other entities have made good faith efforts to bring their home care programs into compliance with the FLSA since promulgation of the Final Rule.”
After Judge Leon’s decision, DOL stated that it would maintain its original enforcement timeline should the Rule be upheld by a higher court. Therefore, November 13 – December 31, 2015 should remain a period of selective enforcement. During this time, DOL will take stakeholders’ attempts to comply with the Rule into consideration when deciding whether to take action for noncompliance.”
Sincerely,
Your team at the National Resource Center for Participant-Directed Services (NRCPDS).
Need a Solution?
QuickSolvePlus has SLS overtime tools that can help California Regional Center Service Providers reduce their overtime exposure. Contact us for more information!
Fair Labor Standards Act Home Care Rule – Likely Effective Date
Our most recent newsletter referenced that Home Care Workers are now eligible for Overtime. This Fair Labor Standards Act Home Care Rule now has a likely effective date. Please read the article and opinions below by the National Resource Center for Participant-Directed Services.
Home Care Rule Likely Effective Date
“As you know, a three-judge panel of the US Court of Appeals for the District of Columbia Circuit (“DC Circuit”) recently reversed the lower court decision that the Fair Labor Standards Act Home Care Rule exceeded DOL’s regulatory authority. The DC Circuit found that DOL acted well within its authority in issuing the Home Care Rule. The Home Care Rule consists of two major components: a new narrowed definition of “companionship” services for purposes of the companionship exemption from overtime and minimum wage, as well as a new Rule prohibiting third-party employers from using the companionship and live-in exemptions.
In light of this decision, the Rule will become effective again in the near future. We have just received confirmation from legal experts stating that the ruling is automatically stayed for 52 days from the decision date. Therefore, the Rule will likely be made effective on October 13, 2015. The automatic stay gives the plaintiffs (the Home Care Association of America, the International Franchise Association, and the National Association for Home Care & Hospice) time to decide their next move.
The plaintiffs have two options if they wish to appeal the decision.
1. They can file a petition asking the Supreme Court to review the DC Circuit decision.
2. They can file a petition asking the entire DC Circuit to review the three-judge panel’s decision.
A recent statement by the National Association for Home Care & Hospice indicated that plans were underway to take the case to the Supreme Court. If the plaintiffs’ appeal is granted, the effective date of the Rule could be pushed back.
However, as a recent New York Times article on the case notes, legal experts have found that the evidence strongly suggests the Supreme Court will NOT agree to hear the case. These experts also find it overwhelmingly probable that the DC Circuit will NOT rehear the case. At this preliminary stage, therefore, it appears that the Home Care Rule is here to stay.
The most likely outcome is that the Home Care Rule will go into effect on October 13.
NRCPDS will hold a Home Care Rule webinar open to all participant direction stakeholders on Wednesday, September 9th from 3 to 4:30 PM EST. The webinar will explore possible legal outcomes of the Home Care Rule litigation and will provide tools for stakeholders to develop a practical approach to compliance. Please stay tuned for webinar registration information.
If your organization needs immediate assistance with a Home Care Rule compliance strategy, please reach out to us at info@participantdirection.org.”
Best,
The NRCPDS Team
Need a Solution?
QuickSolvePlus has SLS overtime tools that can help California Regional Center Service Providers reduce their overtime exposure. Contact us for more information!
Overtime Pay for Home Care Workers
How will your agency be impacted?
On Friday August 21, 2015 a federal appeals court reinstated wage rules that guarantee overtime pay for home care workers and minimum wage protections. No date has been set for when the new rule will be enabled, but, pending an appeal, it could be sooner than later. QuickSolvePlus already has SLS OT tools that you will need!
QSP OT Toolbox
In anticipation of this overtime rule being effective last January, QSP currently has tools available to help reduce your SLS overtime exposure through effective scheduling and maximizing overtime exempt rules, such as Sleep hours and 5 Consecutive Night Shift Rule. Some tools and optional settings include:
- Customizing and defining your OT work week
- Set SLS OT weekly caps for clients and workers
- Set IHSS weekly caps for clients and workers
- Optional Co-Employer with IHSS setting
- Scheduling restrictions based on OT caps
- Reformatted Reports to account for OT: Simple TC’s, PPR and CPPR
Contact us for a free demonstration
QSClock
Our mobile time clock is another effective feature in overtime management by providing real-time insight into staff and client schedules by alerting office personnel of early and late clock ins and outs. QSClock adds an additional level of accountability and accuracy so you know where (GPS locator) and when (early/late/no clock notifications) you’re staff are in relation to the scheduled shifts. Check out more details here.
As told and written by Sadie Hess, Director, COMPASS
I have two businesses. One: the SLS and ILS agency and the other: the software that serves the agency. Eric and I chose to offer our software to this vendor community because we truly understand what it is like to be in this industry. It is not for the faint of heart! It is for the gritty, strong and brave. It is also for people full of love and heart. We all need software that works like we work—on the go and full speed ahead! We are constantly updating, changing and modifying our software to meet the needs of our changing industry. As I write this, our CEO Eric is on the phone gathering information from one of our customers and a friend in the industry. We want this product to work for everyone who is daring enough to do this line of work every day. We want this product to work for you. So, let us know what you need because chances are it is what we need too. We are in this with you. Literally.
My name is Eric Hess and I’m the CEO of this exciting new company!
My wife, Sadie Hess, a 20 year industry veteran, and I have been working toward this day for 4 years, and now we’re here! QSP has been built by a SLS & ILS agency for other SLS & ILS agencies. We know that you’re the hero in the life of your consumer. We just want to help you be a happier hero.
QSP will help you manage your team of SLS personal attendants and ILS instructors much quicker and easier than you’ve ever known.
- Scheduling will be a breeze –you’ll quickly see which of your staff are both available and a good personal match for your clients.
- Timecards will be a snap —they flow right out of the same schedule that you distribute, so you’ll never have to worry that a staff was paid incorrectly because the schedule drives payroll.
- Invoicing is easier —billing data to the regional center comes out of the schedule so you never have to fear a DDS audit.
- HR just got more automatic —Staff and case managers receive automatic email notification if a worker’s job requirements like CPR/First Aid or annual Title XVII retraining have expired.
- Say hello to IHSS utilization —you can see in real time if your team is claiming 100% of IHSS, and if not, you have time in that month to fix it.
We are still building features and tools, like the Mac OSX version (coming October, 2013!) and the simplified mobile version coming in 2014, geared for ILS instructors to use in the field.
Also, there will be a QSP time clock app for smart phones geared for SLS staff, so that all of their start and end times will be instantly communicated to QSP and to their managers. We hope for an early 2014 release for that app. Stay tuned for more updates. We can’t wait to show them off!
As you can see, I am pumped about it all: QSP’s release, its growth and development, this website, the football season, everything!
My accounts manager, Zeb Gill, and I are meeting with agency after agency, telling about QSP and its awesomeness.
Wow! So excited that we are launching our new website. This has been over two years in the making.
I love when you get to see your ideas become a reality.
I remember the first day that I worked with the software developer and tried to describe what we do as an organization. I could tell he was overwhelmed by the complexity of the service. There are so many moving parts we needed to account for in our software. He went to work and came back a month later with a taste of what we would be able to do and I knew. I knew we would have a product that would save so much time and create better systems and communication. I showed it to my team and they were blown away!
I am not going to make it sound easy. It hasn’t been easy. There was a day where we went to enter the information and the system crashed. In the famous words of one of our team members Jenn, “I am so over this today”. But we pushed through and made something that would work – work consistently and work well. Jenn is one of QSP’s biggest advocates and fans now.
I can’t wait for all of my friends to use this product and experience the relief of a product that actually “gets what we do”.