Home-care worker pay dispute reaches Court

Arguing that millions of elderly and disabled individuals who need health care and other help in their homes will not be able to afford it, the home care industry urged the Supreme Court on Thursday to overturn new government rules that will raise the pay and limit the hours of domestic workers.  The application (15A326) is here, and the appendix with lower court rulings is here.

The request puts before the Supreme Court exactly the reverse of the situation it faced eight years ago, when it turned down a home care worker’s plea to be paid a minimum wage as well as pay for overtime.  That came in the unanimous ruling in Long Island Care at Home v. Coke.  The Labor Department changed its mind two years ago, taking away the exemption from wage-and-hour law that domestic workers had had since 1975 — if such workers are hired by a company, and not by the patient or his family.

The three trade groups — Home Care Association of America, International Franchise Association, and National Association for Home Care and Hospice — filed their plea with Chief Justice John G. Roberts, Jr., who handles emergency matters from the District of Columbia.  The U.S. Court of Appeals for the D.C. Circuit upheld the new regulations last month; the change is scheduled to go into effect on October 13.

The Chief Justice has the option of acting on the application on his own, or of sharing it with his colleagues.  No action is likely until the Labor Department gets a chance to reply.

The department reversed course on the issue after concluding that home care has changed markedly, with fewer elderly and disabled individuals going to nursing homes or other institutional providers, and opting instead to remain in their homes and get their assistance there.

At issue are rules that apply to two categories of domestic workers: those who provide “companionship services” by visiting the home, and those who do so while living in the home.  Those workers will be eligible for minimum wages or overtime pay if they are employees of a business or other outside provider.  The new rules will not apply to those who are hired directly by the person being served or by his family; those workers will remain exempt.

The filing in the Supreme Court argued that the change in the rules marks the first time in the seventy-seven-year history of federal wage-and-hour law that an entire group of employers has been denied the exemption that they had long had.  In upholding the loss of the exemption, the application said, the D.C. Circuit “stands on its head” the Supreme Court’s 2007 ruling in the Long Island Care case.

The D.C. Circuit, the trade groups said, interprets that ruling to compel court approval of the first-ever exclusion of a class of employers.

The actual impact of the new rules, if allowed to stand, will be to “severely disrupt the ability of home care employers to provide companionship services to millions of elderly and disabled individuals.”  Because Medicaid funding, for the elderly and the poor, is not available in many states to support the increased costs of the new rule, the application said, “many elderly and disabled consumers would be unable to maintain desperately needed access to home care” when the new rules go into effect.

The trade groups noted that the impact of the new rule was recognized by a federal trial judge who blocked the new rules, only to be overturned by the D.C. Circuit.

The groups’ lawyers said that, if the Court wants the case to be moved on an expedited basis, they will file their formal petition for review promptly.

Posted in: Cases in the Pipeline, Featured

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