By Stephen Tweed
To Pay or Not to Pay … overtime that is. The question of whether private pay home care companies will have to pay overtime to caregivers is still alive. 
The Home Care Association of America and the National Association for Home Care and Hospice have filed a Motion for Stay with the US Court of Appeals.
The Plaintiffs see the Motion for Stay as a key step in the appeal to the Supreme Court. If a stay is not granted, the rules will go into effect on or about October 13, 2015 (depending on the speed of the lower court’s action) even if there is an appeal pending before the Supreme Court. In the event that the Court of Appeals denies the stay request, NAHC intends to seek a stay through the Supreme Court itself. Such a request would be handled by Chief Justice Roberts as he is responsible for such matters involving the District of Columbia appellate circuit.
In its Motion, the Plaintiffs argue that a stay is necessary to protect the interests of consumers, workers, home care businesses, and state Medicaid programs while the Supreme Court considers whether to take on the appeal. If the Court of Appeals ruling goes into effect, Plaintiffs argue that consumers will face access to care problems, loss of continuity of care with the workforce shifting to part-time employees, and a risk that quality of care deteriorates when multiple caregivers replace a single one with a patient/client. As NAHC has held for many years, the rule change also creates a risk of irreparable harm to workers who are likely to lose income when they are relegated to part-time work. Further, it is very clear that state Medicaid programs have not and will not increase payment rates sufficient to cover the costs of overtime. All of these impacts ultimately causes harm to home care businesses that have operated under the overtime exemption for 40 years.
The DOL competing Motion seeks to have the Court of Appeals ruling take effect earlier than the October 13 date. The DOL motion does not specifically suggest an earlier date. However, DOL indicates that it will not bring enforcement actions against any employer until 30 days after the court’s mandate issues. DOL instituted a similar “non-enforcement” policy as the challenged rules were about to take effect on January 1, 2015. Such a policy has very limited value to employers as it would not stop employees and their attorneys from enforcing the rules in a private action.
The Court of Appeals has ordered that each party submit a response to the competing motions by September 14, 2015. It is expected that the Court will issue its rulings on the motions quickly thereafter. In the meantime, NAHC and its co-plaintiffs are preparing to file a Petition for Writ of Certiorari requesting that the US Supreme Court hear the appeal. Supreme Court review is discretionary. NAHC will argue that the importance of the issue to thousands of home care businesses, millions of patients/clients, and hundreds of thousands of workers warrants the Court’s review. NAHC had earlier litigated related overtime issues successfully at the Supreme Court in 2007.
Watch the Video
Val Halamandaris, the CEO of NAHC has prepared a short video expressing his viewpoint on this issue. It’s worth a few minutes of your time to watch.
(Note: This video is on the home page of the NAHC web site. If it is not here, it may have been replaced by more pressing news)
Join the Conversation
This issue has been a hot topic for discussion in our Linked In Group, The Leading Home Care Network. Here are some member comments from the past few days:
Sherry Writes:
“The DOL has yet to say who will pay the OT. Client can’t, medicaid can’t, insurance can’t/won’t, the home care company can’t for any sustained time.
Just ask any hotel, department store, hospital or any industry how often they pay OT or do they cap at 40 and use part timers?
If a business can not keep up, everyone loses. On paper, the exemption removal looks good, but in practice… all goes down the drain. More caregivers on a case, especially for 24 hour or live in care.
More disruption, especially for those with dementia.”
Laurie Writes:
“Would you rather have the option to work 50 hours per week at straight time or be capped at 40 hours a week at straight time? The caregivers that I know willingly work as many hours as they can and want. They are not required to work more than 40…it is their choice. If the exemption is eliminated, they will be limited to only 40 hours greatly reducing their income.”
Kathy Writes:
“My experience is here in California where we deal with OT laws and Sick time laws everyday. I think we all fear the increase in “Registry” type agencies who will refer care givers but not be involved in the actual hiring decision. I know I speak for many when I say that this is a frightening practice. As many have stated before; Seniors on a tight budget may choose this option only to be shocked by what can happen by hiring someone with out a background check, DMV record or fingerprints.”
Scott Writes:
“The registry model is different around the country and varies widely in different states. In FL they are indeed licensed and all CG’s working for them are background checked but there are many many important differences between registries and agencies the most fundamental being that with an agency they are employees and with a registry they are independent contractors, 1099’s. The quality of care may not be compromised but families simply do not understand the risks they assume in a registry model as they in fact may be deemed the employer not the registry.”
What do you think?
To add your two cents to this conversation, to to Leading Home Care Network on Linked In.
