As we previously reported, on August 21, 2015, the United States Court of Appeals for the D.C. Circuit in Home Care Association of America v. Weil reinstated the U.S. Department of Labor’s (DOL) regulations extending the federal minimum wage and overtime requirements for home health care workers employed by third-party employers. The federal appeals court decision overturned a lower court decision that struck down the new regulations just before they were scheduled to go into effect at the beginning of 2015. 

There continues to be considerable uncertainty, however, concerning whether and when the new regulations will go into effect. By operation of the law, the D.C. Circuit’s decision becomes effective 52 days after it was issued—which is October 13. Home health care associations have requested that the appellate court delay the date on which the decision will become effective because they intend to ask the Supreme Court of the United States to review the validity of the regulations. On the same day that the associations submitted their request, the DOL filed its own motion requesting the D.C. Circuit to expedite the effective date. Briefing on both parties’ requests is complete, and the appellate court is expected to rule shortly.

In the meantime, on September 9, 2015, the DOL issued a policy statement on the topic. The policy statement confirmed that, regardless of the appellate court’s decision regarding the parties’ requests, the DOL will not begin enforcement of the new regulations against any employer for violations of their obligations under the Fair Labor Standards Act (FLSA) until 30 days after the appellate court’s opinion becomes effective. Nonetheless, implementation of the new regulations could be further delayed should the Supreme Court of the United States decide to review the validity of the regulations.

While the implementation date for the new FLSA regulations remains uncertain, employers should take steps to ensure that, in the event they go into effect, they will be in compliance.