On the heels of his ruling vacating the DOL’s new rule (which was scheduled to be effective January 1st) rendering the FLSA’s companionship exemption unavailable to “third party” employers of companions, Judge Richard Leon has now issued a companion decision vacating the new, substantially narrowed definition of “companionship services” contained in the same DOL rulemaking. Home Care Ass’n of Am. v. Weil, D.D.C., No. 14-CV-967, DKT 32 (1/14/15). Judge Leon’s new decision again expressed hostility towards the USDOL’s use of regulatory rulemaking to unmake the exemption, pointing out that the revised companionship exemption would be so narrow as to be meaningless because it would “write out of the exemption the very ‘care’ the elderly and disabled need, unless it were drastically limited . . . so as to be of little practical use.” While the Judge called the DOL’s “concern about the wages of home care providers . . . understandable,” he held “Congress [to be] . . . the appropriate forum in which to debate and weigh the competing financial interests in this very complex issue affecting so many families.”
DOL appeal seems likely, if not inevitable, leaving an entire industry in legal limbo. Industry employers should consult with counsel to develop their short and long-term compliance strategy, taking into account the many different possible outcomes.