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Federal Appeals Court Denies Motion For Stay from Home Care Association

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

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Home Care Rule Enforcement Will Begin November 13, 2015

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).

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Home Care Rule Likely Effective Date

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!

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