Home Care Aides and the FLSA: Judicial Checks on the Department of Labor

On Behalf of | Jan 23, 2015 | Fair Labor Standards Act (FLSA) |

In 2014, the Department of Labor adopted a new regulation, scheduled to take effect on January 1, 2015. This new regulation aimed to eliminate an exemption from the Fair Labor Standards Act (FLSA) for home care aides and those who provide live-in domestic services. On December 22, 2014 U.S. District Court for Washington D.C. struck down this new regulation in the case of Home Care Association of America v. Weil. [1]

Generally, the Fair Labor Standards Act requires employers to pay employees a minimum wage and overtime for every hour per week worked over forty. In 1974, Congress adopted exemptions from the Act’s requirements for certain employees, including home care aides, domestic services providers, workers who provide in home care for the elderly or mentally disabled and who are employed by a third party agency. The exemption was intended to make care more affordable for the elderly or disabled. [2] The exemption required that the companion spend 80% of their working hours per week caring for the elderly or disabled, and at most 20% of their time doing household chores such as cleaning.

In recent decades, the home care industry greatly expanded, bringing the home aide exemption under scrutiny. The case of Long Island Care at Home v. Coke, challenged the exemption. [3] A home care aide contested her exemption status from the FLSA, demanding overtime payments. The Supreme Court held that the exemption was valid, but it only applied to home care aides employed by a third party.[4] According to the Department of Labor, 90% of home care providers are employed through a third party agency.

Since this decision, there have been six failed congressional bills to classify home care workers as non-exempt. The Department of Labor has the authority to issue regulations to help “fill-in” gaps in the law, or define certain statutory terms. In determining whether a Department of Labor regulation should be given deference, a court considers whether Congress has addressed the issue. If Congress has addressed this issue, then the Department of Labor is to give deference to their intent. As it stands Congress has made their intentions clear: ” Any employee’ who is employed to provide companionship services, or who resides in the household in which he or she is employed to perform domestic services, is covered by the exemption,”[5] The statute remains unchanged despite attempts to alter the provisions. The court in Home Care Association of America found that Congress intended to include all home care and domestic services workers to be exempt. Furthermore, the court held, by declaring home care aides non-exempt from the FLSA’s requirements, the Department of Labor has exceeded its authority in promulgating the regulations. Plaintiffs welcomed the decision, stating eliminating the home care exemption would threaten affordable and accessible care to seniors and the disabled. [6] Employers should proceed with caution. States may still have wage and overtime requirements for home and domestic care workers. The Department of Labor plans to appeal the decision as well.

[1] Home Care Association of America v. Weil, No. 14-cv-967 (D.D.C. 2014)

[2] Smith, Allen. “About SHRM.” Society for Human Resource Management. 2 Jan. 2015. Web. 23 Jan. 2015. <http://www.shrm.org/legalissues/federalresources/pages/flsa-rule-home-care-workers.aspx>.

[3] Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007)

[4] Id.

[5] 29 C.F.R. § 552.109

[6] Court Vacates Department of Labor Wage Regulation Extending FLSA Protections to Home Care Workers | Lexology.” Court Vacates Department of Labor Wage Regulation Extending FLSA Protections to Home Care Workers. Hunton, Williams LLP, 20 Jan. 2015. Web. 23 Jan. 2015. <http://www.lexology.com/library/detail.aspx?g=ccc5df4b-d57b-4144-b120-33cadd7daae8>.