Home Care Wage Case in Supreme Court Limbo

With only eight justices currently seated, the U.S. Supreme Court may be having to make some tough calls on which cases to consider—including one on controversial minimum wage and overtime protections for home care workers.

Already, the high court has delayed its decision on the home care case once. But the case—Home Care Association of America (HCAA) v. Weil—also does not appear on the schedule for this coming Friday’s considerations, The Hill reported Monday.

“The first time was on Good Friday, so it could have been a scheduling issue, but if it gets delayed again we’d probably start thinking, ‘Do we have a shot?’” HCAA Executive Director Phil Bongiorno told The Hill.

The National Association for Home Care & Hospice (NAHC) joined HCAA in petitioning the Supreme Court, but the trade group’s leader on legal matters is more circumspect about what might be going on.

“I prefer not to speculate on what is in the minds of the Supreme Court justices,” NAHC Vice President for Law William A. Dombi told Home Health Care News.

Since the death of Justice Antonin Scalia in February, the ideologically divided Supreme Court has faced the prospect of split 4-4 decisions, which upholds the previous appeals court decision. In the home care case, this would mean that workers in this sector would have minimum wage and overtime protections as most other workers around the country. Home care workers had been excluded from these protections as so called “companion” workers, but after a series of decisions and counter-decisions, the U.S. Court of Appeals for the District of Columbia Circuit in August upheld the Department of Labor’s move to extend the protections.

NAHC and HCAA argue that the Department of Labor usurped Congressional authority, and say the rule places a financial burden on providers that could limit access to care. The DOL’s move has been supported by workers’ rights groups such as the Paraprofessional Healthcare Institute.

If the Supreme Court justices believe that the outcome likely will be a 4-4 tie, they may be reluctant to take on the home care case and essentially waste their time as well as the litigants’, experts told The Hill.

“In a 4-4 tie, it’s as if the decision never occurred,” Russell Wheeler, a visiting fellow at the Brookings Institution, told the newspaper. “It’s as if they never took the case. They must be looking at that and feeling a little frustrated.”

Considering that Republican lawmakers have vowed not to approve Scalia’s replacement before the Presidential election in November, it could be a long time before the potential deadlock is resolved. Merrick Garland, President Obama’s nominee to replace Scalia, is chief judge of the United States Court of Appeals for the D.C. Circuit, but he was not part of the three-judge panel in the Weil case. The opinion in that case was penned by Judge Sri Srinivasan, who also was widely floated as a potential pick for the Supreme Court.

Written by Tim Mullaney