DOL Announces Time-Limited Non-Enforcement of Home Care Rule

DOL Announces Time-Limited Non-Enforcement of Home Care Rule

The Department of Labor has announced that it will publish a Federal Register notice announcing a time-limited non-enforcement policy toward the Final Rule amending regulations extending Fair Labor Standards Act (FLSA) protections to most home care workers. The rule will become effective on January 1, 2015, but for six months, from January 1, 2015 to June 30, 2015, the Department “will not bring enforcement actions against any employer as to violations of FLSA obligations resulting from the amended regulations.” For the following six months, from July 1, 2015 to December 31, 2015, the Department “will 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.” Throughout the 12-month duration of this policy, the DOL says it “will continue extensive outreach and technical assistance efforts, in particular with States regarding publicly funded home care programs.”

DOL describes two goals which have guided the Department’s efforts around implementing the final rule: “extending basic labor protections to home care workers, and ensuring that people with disabilities and seniors continue to have access to critical home and community-based services, particularly services delivered through innovative models of care.” DOL cites requests to extend the effective date of the Home Care Final Rule from NASDDDS, the National Association of Medicaid Directors (NAMD), the National Association of States United for Aging and Disabilities (NASUAD), organizations representing disability advocates, and the states of Kansas, Oregon, Maryland and Pennsylvania.  DOL also describes requests to maintain the implementation date of January 1, 2015 from Caring Across Generations, Direct Care Alliance, the National Domestic Workers Alliance, National Employment Law Project, Paraprofessional Healthcare Institute (PHI), the National Consumer Voice for Quality Long-Term Care, the American Geriatrics Society, and other organizations of worker advocates.

The Department says it “has carefully considered these requests and is not extending the Final Rule’s effective date.” However, DOL recognizes that “the implementation of the Final Rule raises sensitive issues,” in particular, the need to find “methods of complying with the FLSA in a manner that avoids harmful impacts on the individuals who rely on home care.” For this reason, DOL is instituting a non-enforcement policy from January 1, 2015 to June 30, 2015, which will apply to all employers. During this six-month period, the Department “will concentrate its resources on continuing to provide intensive technical assistance to the regulated community, in particular State agencies administering home care programs.” Although the Department will not conduct formal investigations of potential FLSA violations during this time, “any information received during this time period suggesting non-compliance with FLSA requirements will be used as an opportunity to provide additional technical assistance to States and other potential employers in order to facilitate efficient and effective implementation of the Final Rule.”

From July 1, 2015 until December31, 2015, the Department “will exercise its prosecutorial discretion…when making determinations on a case-by-case basis as to whether to bring enforcement actions in the home care context.” During this six-month period, the Department “will give strong consideration to an employer’s efforts to make any adjustments necessary to implement the Final Rule, and in particular a State’s efforts to bring its publicly funded home care programs into FLSA compliance, in determining how best to use its prosecutorial discretion in this area.” The Department will “consider a variety of other factors in making enforcement decisions, including the Department’s limited resources, the extent of the violations at issue, and the impact of a particular enforcement action on compliance more broadly.”

This non-enforcement policy, DOL states, does not apply to FLSA violations unaffected by the Final Rule, such as those involving home care services provided by registered nurses and licensed practical nurses, services provided in nursing homes, group homes, or other institutions in which the workers are not domestic service employees.

The non-enforcement policy makes clear DOL’s commitment to “implementing the rule in a manner that both protects consumers and expands wage protections for direct care workers.” However, the Federal Register notice and accompanying materials leave several questions unanswered. It is unclear, for example, what impact DOL’s non-enforcement policy would have on the disposition of a suit brought in the courts; it is also unclear whether complaints brought to DOL after July 1st, 2015 could result in the awarding of back wages based on liabilities incurred beginning January 1st, 2015. In discussions with state agency association leaders, DOL offered to conduct all-state calls to further clarify the ramifications of their non-enforcement policy.

FMI: Links to the Federal Register announcement and a DOL blog explaining the decision can be found at