Two new motions were filed this week in the battle over whether private duty agencies should continue to follow the companionship exemption that’s been in place for about 40 years.
The National Association for Home Care & Hospice (NAHC) and two other associations on Sept. 1 filed a Motion for Stay with the U.S. Court of Appeals, NAHC announced today. By filing the motion, NAHC hopes to delay the new rules from going into effect.
Meanwhile the Department of Justice, which represents the Labor Department, filed a Sept. 1 Motion for Expedited Issuance of the Mandate.
The Labor Department attempted last year to eliminate the companionship exemption beginning Jan. 1, 2015, requiring overtime payments for an estimated 1.9 million home-support aides who work for employers other than the seniors and other clients they help. Three provider associations brought a lawsuit challenging this change — NAHC, the Home Care Association of America and the International Franchise Association.
Initially the associations had success, as a Washington, D.C federal district court judge issued an order blocking Labor’s attempt to eliminate the exemption. But on Aug. 21, the associations suffered a setback when a three-judge panel of the U.S. Court of Appeals for the District of Columbia said that the Labor Department had the right to require overtime payments.
For now, agencies should continue to follow the rules that previously had been in place. But the appeals court’s decision is scheduled to take effect Oct. 13, with an order that the lower court issue a decision in the Labor Department’s favor, NAHC says in its motion.
NAHC sees its Sept. 1 motion as a “key step in the appeal to the Supreme Court,” the association says on its website. If a stay isn’t granted, the new rules will go into effect even if an appeal is pending before the U.S. 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,” NAHC says. “Such a request would be handled by Chief Justice [John] Roberts as he is responsible for such matters involving the District of Columbia appellate circuit.”
NAHC’s motion argues that a stay is needed to protect the interests of home care businesses, workers and others while the Supreme Court considers whether to take on the appeal.
A motion from the Labor Department, meanwhile, seeks to have the appeals court’s ruling take effect sooner than Oct. 13.
“The mandate should be issued expeditiously so that the final rule can be implemented,” the Labor Department’s motion states. “There is no reasonable likelihood that this Court’s decision will be subject to further review.”
The motion doesn’t suggest what date the changes should take effect, but the Labor Department does note that won’t enforce the changes against employers until 30 days after the court’s mandate.
Such policies from the Labor Department, however, have “very limited value to employers as it would not stop employees and their attorneys from enforcing the rules in a private action,” NAHC argues.
Each party must submit a response to the other’s motion by Sept. 14.
“It is expected that the Court will issue its rulings on the motions quickly thereafter,” NAHC says. “In the meantime, NAHC and its co-plaintiffs are preparing to file a Petition for Writ of Certiorari requesting that the U.S. Supreme Court hear the appeal.”