The Department of Labor’s (DOL) Office of Disability Employment Policy (ODEP) has created a national online dialogue on the use of subminimum wages under Section 14(c) of the Fair Labor Standards Act. DOL is specifically seeking comments from people with disabilities, their families, providers, disability organizations, employers, researchers, and other stakeholders. The Arc supports building infrastructure and supports to increase opportunities for competitive integrated employment. Comments can be submitted here by June 14.
The Advisory Committee on Increasing Competitive Integrated Employment for Individuals with Disabilities will hold its fourth meeting on July 13-14, 2015 in Washington, DC. The meeting will be open to the public on July 13 from 8:30 am to 5:00 pm EDT and on July 14 from 8:00 am to 4:00 pm EDT.
The agenda includes the four subcommittees reporting on their work on draft chapters for the interim report; expert panels that will address issues with provider transformation to Competitive Integrated Employment; a panel of providers about their experiences with sheltered workshops under section 14(c) of the Fair Labor Standards Act; and a public comment period on July 14 from 2:15 pm to 3:00 pm EDT. Organizations or members of the public wishing to submit a written statement may do so by July 2, 2015. Instructions on submitting comments can be found in the Federal Register Notice.
Last week, three judges from the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments related to Home Care Association of America v. Weil which challenges the Home Care Final Rule issued by the Department of Labor (DOL) and intended to be implemented on January 1, 2015. The rule was put on hold due to a pair of rulings from the US District Court vacating the challenged provisions. The suit challenges DOL’s authority to 1) revise the definition of companionship services and 2) discontinues the exemption of overtime compensation by third party employers of home care workers who provide companionship services from overtime compensation. The Court of Appeals is expected to issue a decision this summer. For more information, visit http://www.dol.gov/whd/homecare/.
Recently, the Wage and Hour Division of the U.S. Department of Labor posted a PowerPoint presentation which provides a general overview of section 14(c) and requirements for certificate holders. This presentation is accessible by the public at http://www.dol.gov/whd/sec14c/14c-presentation.ppt. For additional guidance on section 14(c), please see the Wage and Hour Division webpage.
Recently, Secretary Thomas Perez, Department of Labor, sent a letter to Governors advising them to be prepared to implement the Fair Labor Standards Act to domestic service (referred to as the Homecare Rule), and therefore be mindful of budgetary considerations. The rule, initially intended to be implemented on January 1, 2015, was put on hold due to a pair of rulings from the US District Court vacating provisions. The Department of Labor has filed an appeal, and in response, the Court of Appeals has ordered that it proceed on an expedited schedule. The case will be fully submitted in early May, and the Court of Appeals can issue a decision at any point thereafter. For more information, visit http://www.dol.gov/whd/homecare/.
Last week, we reported that Congressman Gregg Harper (R-MS) introduced H.R. 188, Fair Wages for Workers with Disabilities Act of 2015 on January 7, 2015. Since then, the bill text was published as the Transitioning to Integrated and Meaningful Employment (TIME) Act. The bill would phase out the issuance of special wage certificates [14(c)] under the Fair Labor Standards Act of 1938, allowing individuals with disabilities to be employed at subminimum wage rates. The proposal would discontinue the issuance of such certificates upon enactment; transitioning entities holding such certificates within three years; and repealing the relevant section of the Fair Labor Standards Act. An identical bill was introduced in 2013 under a different name, though it did not advance in the House of Representatives. It was referred to the House Education and the Workforce Committee.
Last week, Congressman Gregg Harper (R-MS), introduced H.R. 188, Fair Wages for Workers with Disabilities Act of 2015. The bill aims to phase out special wage certificates [Section 14(c)] under the Fair Labor Standards Act of 1938, under which individuals with disabilities may be employed at subminimum wage rates, by discontinuing the issuing of such certificates upon enactment; transitioning entities holding such certificates within three years; and repealing the relevant section of the Fair Labor Standard Act three years after enactment. The bill was referred to the House Education and the Workforce Committee with one co-sponsor, Representative Gus Bilirakis (R-FL). An identical bill, the Fair Wages for Workers with Disabilities Act of 2013 (H.R. 831), introduced by Congressman Harper in 2013, died at the end of the 113th Congress with 97 co-sponsors.
On December 22, 2014, in Home Care Association of America v. Weil, Civil Action No. 14-967 (D.D.C.), D.C. District Court Judge Richard Leon struck down the amendment to the Fair Labor Standards Act in the Home Care Final Rule which disallows third party employers of home care workers to exempt workers who provide companionship services from overtime compensation. On December 31, 2014, Judge Leon issued a temporary restraining order staying the revised definition of companionship until January 15, 2015, in order to consider plaintiffs’ motion. On January 8, 2014, Judge Leon consolidated the two issues to be considered at a hearing which took place on Friday, January 9, 2015. Another hearing to inform the parties of his decision will be held on Wednesday, January 14, 2015. The Department of Labor continues to support its rule and is in opposition to the plaintiff’s motion.
As the January 1, 2015 deadline approaches for implementation of the final rule on “Application of the Fair Labor Standards Act to Domestic Service” (also referred to as the home care or companionship rule), the Department of Labor, Wage and Hour Division released additional resources related to shared living programs. For additional information on the Rule, visit the DOL’s dedicated web site for fact sheets, FAQs, and contact information as well as a series of webinars.
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.