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09 Sep 2015

WASHINGTON D.C. — The United States Court of Appeals for the District of Columbia has upheld a Department of Labor regulation that will provide Fair Labor Standards Act (FLSA) coverage to nearly two million home care workers who will not qualify for minimum wage and overtime protections. The DOL adopted homecare regulations in 2013 that would extend FLSA protections to employees of third-party agencies assigned to provide care in a home that have always been afforded to their counterparts who provide largely the same services in an institutional setting. A group of associations of home care agencies filed suit, and a district court invalidated DOL’s homecare rule. The D.C. Court of Appeals decision reversed the district court’s decision last August 21, 2015.

Homecare Workers Under FLSA

FLSA’s protections include the guarantees of minimum wage and overtime pay for non-exempt employees. However, FLSA has long exempted categories of “domestic service” workers, including those who provide “companionship services” and those who live in the home where they work. Until recently, DOL interpreted these exemptions to include employees of third-party service providers. This would include residential care givers, and over the years, individuals with significant care needs increasingly receive services in their homes rather than in institutional settings. These caregivers are not largely employed by third-party agencies rather than directly by care recipients under families. Therefore, DOL reversed its traditional position on exempting homecare workers and issued regulations that would remove these employees from the exemptions and bring them within FLSA’s minimum wage and overtime purview.

Shared Living Arrangements

Many programs that may be affected by the new rule include those that provide support and services allowing people with disabilities and older individuals to live in their own homes or in family homes in their communities, instead of group homes or institutions. In shared living situations, the workers and the individuals receiving assistance live and share a life together. According to DOL, it is often difficult to determine what constitutes “hours worked” because of the intertwined nature of a live-in provider’s work and personal activities. In these situations, the employer and provider may come to a “reasonable agreement” to exclude from paid hours worked time that the provider spends engaging in typical private pursuits such as eating, sleeping, and other periods of complete freedom from all duties. Any calls to duty during these otherwise unpaid periods must be paid, and sleep of no more than eight hours may be excluded if the provider can generally enjoy uninterrupted sleep. To exclude off-duty breaks other than meal and sleep time, they must be long enough to enable the provider to make effective use of his or her own time.

If you are a home care provider, you may qualify for the minimum wage and overtime protections of FLSA under DOL’s homecare regulations. You should call (855) 754-2795 or complete the Free Unpaid Overtime Case Review form on the top right of this page if you feel that you are being denied minimum wage and overtime. Our top-rated team of wage lawyers will evaluate your situation to determine your best course of action. We will also determine if it is in your best interest to file a lawsuit against your employer. There are strict time limitations for filing, so it is important that you call our experienced attorneys today.

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