On September 30, the United States Department of Labor (DOL) sent the state of Illinois a strongly-worded letter warning that the state's proposed rule on overtime for its Home Services Program may result in violations of the Fair Labor Standards Act (FLSA) and "inconsistencies" with Olmstead ADA obligations. The letter says that the DOL has "cautioned States that inflexible caps on worker hours could violate the ADA and Olmstead if they place individuals with disabilities at serious risk of institutionalization or segregation" and directed the state to a letter issued jointly by HHS and DOJ in December 2014. (See WICs article, "DOJ, HHS Send Strong Message on Olmstead Implications of FLSA," December 16, 2014.)
DOL warns that capping hours can result in employees being encouraged to "work off the clock" in order to avoid gaps in service for people with disabilities. Failing to report and pay all hours worked by employees eligible for overtime protection violates the FLSA. The DOL summarizes the issue by saying, "Without an appropriate exceptions policy, it is likely that either employees who care for vulnerable individuals will feel that they have no choice but to work uncompensated hours, resulting in FLSA violations, or consumers will be left without adequate assistance, resulting in Olmstead violations. Neither outcome is acceptable or necessary."
ANCOR members should note that this letter refers to policy initiated specifically to address the DOL Home Care Rule, which was finalized in October 2013, and went into full effect in late 2015. The Home Care rule narrowed the scope and application of the companionship and live-in domestic service worker exemptions. This is a different rule than the DOL Overtime Rule, which significantly increases the salary threshold for "white collar" exemptions. The Disability Community Act, H.R. 5902, which ANCOR has been advocating strongly for through its Save Our Services campaign work, would provide additional temporary funding to help states comply with both of these DOL rules, as well as the CMS HCBS rule.