The U.S. Labor Department has now announced that, beginning on November 12, it will start enforcing its revised regulations governing the Fair Labor Standard Act's Section 13(a)(15) "companionship" exemption and Section 13(b)(21) overtime exemption for "live-in domestics".
USDOL has again committed to follow its previously-expressed policy of exercising "prosecutorial discretion in determining whether to bring enforcement actions" for the remainder of 2015. The agency also repeated that, in exercising this discretion, it will give "particular consideration . . . to the extent to which . . . entities have made good faith efforts to bring their home care programs into compliance with the FLSA since the promulgation of the Final Rule.
"Remember also that current or former employees could commence their own FLSA lawsuits based upon the changed regulations without waiting until November 12.
The Home Care Association of America, the International Franchise Association, and the National Association for Home Care and Hospice have indicated that they will seek U.S. Supreme Court review, but it is by no means certain that the Court will even accept the case. The preferable course at this point is for employers who are no longer able to rely upon one of these exemptions to ensure that they are in compliance with the FLSA's minimum-wage, overtime, and timekeeping requirements where the affected employees are concerned.