DOL Announces Time-limited, Non-enforcement Policy Regarding the Home Care Final Rule

On October 1, 2013, the Wage and Hour Division of the U.S. Department of Labor (DOL) released “Application of the Fair Labor Standards Act to Domestic Service; Final Rule”, 78 FR 60454, (Final Rule)  which extended minimum wage and overtime protections to most home care workers. Under the rule, most home care workers will have the same protections provided to the majority of U.S. workers under the Fair Labor Standards Act (FLSA), including many direct support professionals (DSPs) who provide supports and services to individuals with intellectual and/or developmental disabilities (I/DD).

The rule goes into effect on January 1, 2015.  However, DOL has received requests for a deadline extension from state agencies, national and state associations, and advocacy organizations, citing the need for additional time to secure budgetary, programmatic, and operational adjustments.  In response to these requests, on October 8, 2014, DOL announced the adoption of a time-limited, non-enforcement policy which applies to all employers. In a blog post, DOL stated the following:

“After careful consideration, the department decided to adopt a time-limited non-enforcement policy. This approach will best serve the goals of rewarding hard work with a fair wage while not disrupting innovative direct care services. For six months, from January 1, 2015 to June 30, 2015, the department will not bring enforcement actions against any employer who fails to comply with a Fair Labor Standards Act obligation newly imposed by the rule. During the subsequent six months, from July 1, 2015 to December 31, 2015, the department will exercise its discretion in determining whether to bring enforcement actions, giving strong consideration to the extent to which states and other entities have made good faith efforts to bring their home care programs into FLSA compliance. Throughout 2015, we will continue to provide robust compliance and technical assistance”.

Despite the deadline extension, DOL officials have pointed out that while as of the effective date DOJ may not bring enforcement actions, employers may be subject to a private right of action by an employee who believes s/he has been harmed by the employers’ actions.

DOL is maintaining a website dedicated to the Final Rule containing information related to the Final Rule, a series of webinars, FAQs, and Fact Sheets to assist employers, employees, and consumers navigate requirements of the Final Rule.

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