The Department of Labor’s Wage and Hour Division (WHD) recently announced that it will delay bringing enforcement actions against employers who violate the new minimum wage and overtime requirements imposed by the home care regulations that take effect on January 1, 2015.  The controversial rule, announced on September 17, 2013, extends federal minimum wage and overtime protections to an estimated two million workers by eliminating the Fair Labor Standard Act’s (FLSA) minimum wage and overtime exemption for certain home care workers.  29 C.F.R. Part 552.  This “companionship exemption” currently exempts persons who provide “companionship services” to persons who, because of advanced age or physical or mental infirmity, cannot care for themselves.  The revised regulations provide that the companionship exemption is not available to home care workers employed by a third-party company.  Additionally, the final rule narrows the definition of companionship services, thereby limiting the exemption for home care workers directly employed by the individual receiving the services.

According to the WHD’s October 7, 2014 announcement, for six months, from January 1, 2015 to June 30, 2015, the Division will not bring enforcement actions against any employer for violations of FLSA obligations resulting from the amended regulations.  After this grace period, the WHD will proceed with limited enforcement from July 1, 2015, to Dec. 31, 2015.  In deciding whether to prosecute, the DOL  will give “particular consideration” to “the extent to which States and other entities have made good faith efforts to bring their home care programs into compliance with the FLSA since promulgation of the Final Rule.”

Employers should understand that the effective date of the regulation, January 1, 2015, has not changed, and therefore home care companies could still face private enforcement efforts even during the WHD’s enforcement “grace period.”  As such, although enforcement is delayed, employers should make every effort to comply with regulatory changes in a timely manner.

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Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group, co-head of the Counseling, Training & Pay Equity Group and a member of the Restrictive Covenants, Trade Secrets & Unfair Competition Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Guy is a former clerk to Judge Colleen Kollar-Kotelly of the US District Court of the District of Columbia.