JavaScript is disabled! Please enable to improve your experience. Published by: Hall Render. On August 21, , the Court of Appeals for the D. This means the rule that prohibited third-party employers from relying upon the exemption is valid.
The Court noted that in a previous case,Evelyn Coke v. Long Island Care at Home, the U. Supreme Court had expressly concluded that the FLSA was ambiguous and that the question regarding whether third-party employers can rely on the exemption was an issue for the DOL to decide through rulemaking.
This step of review tends to be very deferential to the agency. The Court found the DOL had considered the impact of the changes to providers, workers and patients.
The Court specifically noted that the DOL had considered data from 15 states that had eliminated the companionship exemption. As a result of this ruling, third-party employers will not be able to rely upon the companionship services exemption. Providers must assess whether they can afford to pay employees they categorized as exempt companions overtime and, if not, how to reduce employee hours to avoid overtime.
It is not clear when the DOL will begin to require compliance with the new rule. They had previously given providers a grace period to achieve compliance. Perhaps they may provide a similar grace period at this juncture. The bottom line is that providers should now revisit the impact of using non-skilled workers, such as home health aids, hospice aids and attendants, more than 40 hours a week as they will soon have to be paid overtime. If you have any questions or would like additional information on this topic, please contact Robert W.
