Late Tuesday afternoon, the Department of Labor (DOL) announced that it would delay the enforcement, but not the implementation, of the recently finalized Home Care rule. The rule, which makes several changes to the Fair Labor Standards Act (FLSA), including the narrowing of the companionship exemption, was finalized just over a year ago and has an effective date of January 1, 2015. ANCOR and other organizations have advocated for a delay in the implementation of the rule's effective date in order to allow states adequate time to modify their funding structures to ensure that people with disabilities do not have their services interrupted while coming into compliance with the new rule. As the new delayed enforcement policy does not bar private enforcement actions during the period of federal non-enforcement, ANCOR strongly advises providers to consult with an attorney to determine organizational risk.
The formal policy statement published in the Federal Register outlines the non-enforcement policy. For the first six months after the rule's effective date, from January 1, 2015 to June 30, 2015, the DOL will not bring enforcement actions against any employer who fails to comply with an FLSA obligation newly imposed by the rule. Enforcement actions include investigating potential violations, supervising settlements for unpaid wages, or filing suit in Federal court to recover wages. During this initial period of non-enforcement, the DOL will not open investigations based on complaints, but rather will take the opportunity to provide intensive technical assistance to states and other potential employers.
During the subsequent six months, from July 1, 2015 to December 31, 2015, the DOLwill exercise its discretion in determining whether to bring enforcement actions, giving strong consideration to the extent to which states and other entities have made good faith efforts to bring their home care programs into FLSA compliance. The DOL says it will continue to provide "robust compliance and technical assistance" throughout 2015.
The DOL also issued Q&As on the non-enforcement policy, which are available here.