HCAOA The Voice Winter 2017-18

PUBLIC POLICY THE LABOR DEPARTMENT INDICATED on Oct. 30 that it plans to appeal a federal district court’s recent ruling against the department’s white-collar overtime final rule, and to then ask that the appeal be put on hold while it prepares a new rule. The Justice Department, on behalf of the U.S. Department of Labor (DOL), filed a notice to appeal this decision to the U.S. Court of Appeals for the Fifth Circuit. Once this appeal is docketed, the Department of Justice will file a motion with the Fifth Circuit to hold the appeal in abeyance while the Department of Labor undertakes further rulemaking to determine what the salary should be. The overtime final rule, which was published on May 23, 2016, and was to take effect Dec. 1, 2016, was prevented from taking effect by a federal district court that ruled that the DOL did not have the authority to issue the rule, which would have more than doubled the salary threshold below which workers would automatically be eligible to earn overtime. The overtime rule remained on hold throughout much of 2017, while the DOL appealed the federal district court ruling. Before oral arguments could take place, which were scheduled to be held Oct. 3, the department requested and received permis- sion from the court to dismiss the appeal (Nevada v. DOL, 5th Cir. App., No. 16-41606, motion granted to dismiss 9/6/17). The department abandoned its original appeal after a federal district court on Aug. 31, 2017 ruled on consolidated cases that challenged the overtime final rule that the salary level exceeded the department’s authority and it that was invalid (Nevada v. DOL, E.D. Tex., No. 4:16-CV-731, 8/31/17). Once the DOL’s appeal of this latest federal district court decision is recognized by the court, the department plans to ask that it be put on hold while it issues new rulemaking on the overtime rule, which could potentially include re-adjusting the salary threshold below which workers are eligible for overtime. DOL Signals Movement on White Collar Overtime Issue THE NEWYORK SUPREME COURT, Appellate Division, has issued decisions that could potentially produce devastating consequences within the home care industry. In the following cases, it was decided that non-residential 24-hour home care aides must be paid minimum wage for all hours spent at a patient’s home: Andryeyeva v. New York Health Care, Inc., 2017 N.Y. App. Div. LEXIS 6408 (N.Y. App. Div. 2nd Dep’t Sept. 13, 2017); Moreno v. Future Care Health Services, Inc., 2017 N.Y. App. Div. LEXIS 6462 (N.Y. App. Div. 2nd Dep’t Sept. 13, 2017); and Tokhtaman v. Human Care, LLC, 149 A.D.3d 476 (N.Y. App. Div. 1st Dep’t Apr. 11, 2017). In accordance with the New York Depart- ment of Labor’s (NYDOL) policies, residen- tial home care aides have traditionally been compensated for 13 hours of each 24-hour shift. Known as the “13-hour rule”, this method takes into account that the aide will receive 8 hours of sleep (5 of which are to be uninterrupted) and 3 uninterrupted hours for meals. However, the three aforementioned rulings have decreed that regardless of periods for sleep and meals, non-residential home care aides employed by a third-party agency must be compen- sated for each hour of a 24-hour shift. In response to these court decisions and their impending impact on the home care industry, the NYDOL issued an amendment t o its Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”) on October 6, 2017. The new amendment states that bona fide meal periods and sleep times may be excluded from hours worked by home care aides who work a shift of 24 hours or more in accordance with federal Fair Labor Standards Act regulations. The “Save New York Home Care Coalition” has been established in response to the recent New York court decisions. If you are a member in New York State and would like further information or would like to participate in the coalition, please contact info@hcaoa.org. NewYork State Lawsuits AS REPORTED RECENTLY, a bill calling for a national strategy to support the more than 40 million Americans who help loved ones live independently at home unani- mously passed the U.S. Senate on September 26. HCAOA is urging members to take action to support the Recognize, Assist, Include, Support and Engage (RAISE) Family Caregivers Act (H.R.3759/S.1028) in an effort to push it through in the House of Representatives. Among its provisions, the RAISE Act calls for bringing together public and private sectors to recommend actions that commu- nities, government, providers and others can take to make it easier for caregivers to coordinate care and receive information, referrals and resources. HCAOA Urges Action on Bipartisan Legislation to Support Caregivers Winter 2017-18 11