On August 21, 2015, the U.S. Court of Appeals for the D.C. Circuit upheld the U.S. Department of Labor's (DOL) Home Care Rule and reversed the lower court's decisions vacating the new rule. On October 6, 2015, the U.S. Supreme Court denied the home care industry coalition's application to stay the effective date of the new rule pending its filing of a petition for certiorari. This means that the appeals court's "mandate" will become effective on October 13.
Technically, on October 13 the D.C. Circuit mandate will instruct the district court judge to issue summary judgment in favor of the DOL. So there could be a slight additional delay before the district court's final order issues. But any third-party home care provider that has been treating its companionship or live-in employees as exempt from overtime should immediately take steps to comply with the new rule.
Going forward, all third-party home care employees covered by the new rule must be paid overtime for hours worked over 40 in a week or they must be scheduled so that they do not work over 40 hours.1
Meanwhile, the home care industry coalition still intends to file a petition for a writ of certiorari asking the Supreme Court to review the D.C. Circuit's decision upholding the Home Care Rule, and it is still possible that the Court will agree to hear the case. But this will not delay the effective date of the new rule, so it is recommended that affected employers take all steps necessary to comply with the new rule as soon as possible.
1 Littler has developed a compliance toolkit to help home care providers comply with the new rule. Please contact your Littler attorney for more information.
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