The U.S. Supreme Court denied an emergency request that was made by a group of home care agencies to delay the effective date of a federal rule that extends wage and overtime protections to home health care workers employed by home care agencies and other third parties. This means that the rule goes into effect on October 13, 2015. These protections are provided under the Fair Labor Standards Act.

Background: Under previous federal law and regulations, employees who are engaged in providing “companionship services,” and who are employed by an employer or agency other than the family or household using their services, were exempt from receiving minimum wage and overtime pay. The DOL stated there are almost 2 million of these home health care workers.

What Are Companionship Services?

“Companionship services” are defined as services provided for the care, fellowship, and protection of persons who, because of advanced age or physical or mental infirmity, cannot care for themselves. These services include household work for aged or infirm persons, including meal preparation, bed making, clothes washing, and other similar personal services.

The Department of Labor (DOL) Wage and Hour Division issued a final rule, which now takes effect on October 13 that makes two significant changes to the regulations:

• The tasks that comprise exempt “companionship services” are more narrowly defined, and

• The exemptions from receiving minimum wages and overtime for companionship services and live-in domestic service employees may only be claimed by the individual, family, or household using the services. Third-party employers, such as home health care agencies, can no longer claim these exemptions.

Earlier Court Rulings and Actions

In late 2014, a federal district court blocked enforcement of the final rule. It stated that the DOL had overstepped its authority in issuing it. In August 2015, a federal appellate court reversed the district court ruling and stated that the DOL does have the power to issue the rule and can enforce it.

In September, the DOL issued a policy statement on the final rule that stated it would not begin enforcing the final rule until “30 days after the date the Court of Appeals issues a mandate making its opinion effective.” That means the DOL won’t begin enforcing the final rule until November 12 (even though it becomes effective on October 13). The DOL also previously announced that it will exercise “prosecutorial discretion” on a case-by-case basis through the end of the year with respect to beginning enforcement action against violators of the final rule.

If you have questions about complying with the final rule, contact your payroll adviser.