The Department of Labor’s (DOL)
final rule on the Home Health Aide/Companionship Services minimum wage and
overtime exemption became effective January 1, 2015. The final rule
revised 1975 Fair Labor Standards Act (FLSA) regulations in response to changes
to the home care industry and workforce. The major effect of the final
rule was to include domestic service workers under the FLSA’s minimum wage,
overtime, and record-keeping provisions. No longer would third-party
employers of home health workers, such as home healthcare agencies, be able to
claim the exemption.
The rule was challenged in federal
court by associations of home care companies, and orders were issued to vacate
the rule’s third-party provisions and revised definition of companionship
services. The DOL then appealed the orders to the D.C. Circuit, and it
prevailed. On June 27, 2016, the U.S. Supreme Court denied the
associations of home care companies’ request for certiorari. As things
currently stand, the DOL is now poised to enforce compliance of the final rule
which is affirmed based on the D.C. Court’s decision.
Regardless of the FLSA’s final
rule, LVNs and most other hourly employees must get time-and-a-half pay for
work over 40 hours over seven consecutive days. A “per visit” home health
rate must translate into hourly pay and comply with the overtime law; time for
notating medical records and driving to
patient's homes must also be compensated.
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