Home Care Providers Await Next Legal Moves in Wage Drama

Days after a federal appeals court upheld the Department of Labor’s rules making nearly 2 million home care workers eligible for minimum wage and overtime protections, state officials are taking steps to comply with the regulations, though Supreme Court review and further delay of implementation remains possible.

Fifteen states already provide minimum wage and overtime protections “to all or most third party-employed home care workers,” according to the DOL. And California Gov. Jerry Brown’s administration, for example, now anticipates extending overtime pay to the state’s In-Home Supportive Services employees after the ruling.

California had previously passed a law granting such protections, but its implementation stalled after trade organizations Home Care Association of America and the National Association for Home Care and Hospice (NAHC) challenged the DOL’s move to eliminate an exemption in federal minimum wage and overtime laws for home care workers employed by third-party staffing agencies.

About $270 million has already been allocated to cover overtime pay for IHSS workers, said H.D. Palmer, a spokesperson for the California Department of Finance, but administering the funds “could be affected by whether or not there is an appeal of this ruling to the U.S. Supreme Court.”

NAHC is “reviewing the decision and keeping all options open,” William A. Dombi, vice president for law at NAHC, said in a statement sent to HHCN.

Aside from appealing to the Supreme Court, NAHC and Home Care Association of America could also file a motion with the District of Columbia Circuit to have all active judges involved in a rehearing as opposed to a three-judge panel, according to The New York Times. But these motions are rarely granted, and legal specialists said the ruling is unlikely to be reversed given the panel’s unanimous decision.

In part, the ruling stems from the changing landscape of the home health industry and the evolving responsibilities for workers, Judge Sri Srinivasan wrote on behalf of the panel.

When home health workers were exempt from the Fair Labor Standards Act provisions in the 1970s, patients were more likely to receive care in institutional settings rather than at home, and aides were viewed more as companion figures, according to the court’s opinion. Since then, the DOL has acknowledged that the tasks administered by those providing in-home care have surpassed what was originally envisioned when the exemption was written in.

Still, increasing wages and securing overtime funds for home health workers brings up the question of how to pay for additional compensation. More likely than not, employees’ raises will come from patients’ pockets, as an increase in care expenses is inevitable, according to Forbes’ columnist Howard Gleckman.

Written by Kourtney Liepelt