Home healthcare providers face a number of regulations. That number grew in 2015 with a regulation that extended wage-and-hour protections under the Fair Labor Standard Act (FLSA) to home healthcare and personal service aides across the country. Recently, the Department of Labor brought lawsuits against at least five home care companies for failing to comply with this new regulation.
The 2015 regulation provides that direct-care workers-including certified nursing assistants, home healthcare aides, personal care aides, caregivers, and companions-employed by a home care agency or other third party must receive minimum wage and overtime pay equal to one-and-a-half times their wages for each hour worked over 40 hours a week. In states with minimum wage laws higher than the federal minimum, workers are entitled to the higher wage.
The regulation also requires employers to keep records of wages paid for at least 3 years and records used to calculate wages, such as time cards, schedules, and additions or deductions from wages, for at least 2 years.
Critics claim the Department of Labor overstepped its authority in expanding protection to direct-care workers. Critics also maintain that the regulation will increase the cost of services for the elderly and disabled. The Home Care Association of America, the National Association for Home Care and Hospice, and the International Franchise Association previously challenged the regulation in court, but the regulation was ultimately upheld on appeal. The Supreme Court in 2016 declined to hear a challenge against this regulation.
In April and May, the Labor Department brought five lawsuits against home care companies, accusing them of failing to pay home care workers minimum wage or refusing to pay the required overtime rates. One company allegedly reduced home care workers' rates in weeks when they worked overtime to reduce overtime payments. Another allegedly improperly deducted food and lodging from worker's compensation.
The lawsuits-filed in Virginia, Maryland, Connecticut, and Ohio federal courts-seek liquidated damages, which would double the alleged unpaid overtime. One of the companies' owners stated that the workers never filed a complaint with the company and that the alleged violation was found during a Labor Department audit.
It's not just the feds who can bring lawsuits under this new regulation. Individual employees can sue too, if they believe they've been underpaid. These disputes may arise from a miscalculation in hours, or over what work is considered compensable, such as sleep time, mealtime, and travel time.
The Labor Department has put out a useful guide. Some suggestions include making sure to perform regular self-audits and finding an efficient way to document worker time-particularly for mobile employees whose time can be difficult to track. If you don't have a policy in place to address FLSA complaints, you should.
This is especially important because the FLSA allows a defendant to avoid liability for failure to comply with the FLSA if the defendant proves that "the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation" of the administrator of the Wage and Hour Division of the Department of Labor or Secretary of Labor. 29 U.S.C. [S] 259. A good-faith defense also allows an employer to avoid liquidated damages. 29 U.S.C. [S] 260. This is good advice, because even good employers can find FLSA lawsuits on their doorsteps-whether brought by the Department of Labor or by individual employees. In such an event, good compliance policies and practices are your best protection.