The Department of Labor (DOL) promulgated a rule that brings home care workers, employed by third parties, within the protection of the Fair Labor Standards Act (FLSA). As a result, those home care workers employed by an entity other than the individual, or the family of the individual for whom they are caring, will be entitled to be paid minimum wage and overtime under the new rule.

An association for providers of private duty home care filed a lawsuit challenging the rule. The district court vacated the final rule’s revised third party regulation and revised definition of companionship services, respectively. The DOL filed an appeal of the district court’s orders to the U.S. Court of Appeals for the District of Columbia Circuit. The case is Home Care Association of America v. Weil, No. 15-5018 (D.C. Cir.).

Noting in Home Care Association of America v. Weil that the duties of home care workers has changed since the 1970s when the companionship exemption was articulated, and finding that the DOL’s regulation was not arbitrary or capricious but was molded to fill in gaps in the DOL’s current regulations, the DC Circuit Court of Appeals then upheld the DOL’s regulation and remanded the case to the district court to grant summary judgment to the DOL. In September 18, 2015, the DC Circuit court denied the Home Care Association’s motion to stay the implementation of the DOL’s rule. Six days later, on September 24, 2015, the Home Care Association applied to the Supreme Court to stay the DC Court of Appeals’ decision. 

On Tuesday, without an accompanying opinion, Chief Justice Roberts of the U.S. Supreme Court, denied the Home Care Association’s application to stay the DC Court of Appeals’ decision to uphold the DOL’s final rule. Because the stay was denied, the DOL’s rule will go into effect next week, on October 13, 2015. However, the DOL has made it clear, that it will not enforce the rule for thirty (30) days after its implementation. Following this 30-day period, from November 12 through December 31, the DOL “will exercise prosecutorial discretion in determining whether to bring enforcement action.” In exercising such discretion, the DOL will focus on the extent to which States and other affected entities have made “good faith efforts to bring their home care programs into compliance with the FLSA since the promulgation of the [Final Home Care Rule].” 

The Court’s denial of the stay does not forgo the possibility that the Supreme Court will ultimately review the underlying case. The denial simply allows the DOL to move forward with implementing the rule later this month. Thus, as of October 13, employers in the home care industry need to ensure that their employees are paid at least the federal minimum wage and overtime for hours worked in excess of 40 in a particular workweek.