NAHC Draws Influential Support In Companionship Exemption Case against DOL
Congressional Leaders, State Attorneys General, Disability Organizations Submit “Friend of the Court” Briefs Supporting NAHC
April 10, 2015 08:56 AM
The U.S. Senate Majority Leader, Mitch McConnell, was among 10 leading members of Congress last week who submitted a “friend of the court” brief, also known as amicus curiae brief, supporting NAHC’s position in its lawsuit against the U.S. Department of Labor (DOL) over new regulations that would redefine the “companionship services” and “live-in” exemptions under the Fair Labor Standards Act (FLSA). Also submitting amicus briefs supporting NAHC last week were nine state Attorneys General, as well as two leading disability groups—ADAPT and the National Council on Independent Living (NCIL)—and the Consumer Directed Personal Assistance Association of New York State.
“The DOL’s amended regulations relative to the companionship and live-in exemptions ignore the plain statutory language and subvert Congressional intent, with potentially devastating effects to the aged and infirm and their families,” wrote the members of Congress in their amicus brief. “There are no ‘winners’ to be found in this new regulatory scheme. The effects Congress clearly sought to avoid in 1974 by creating this limited exemption from the FLSA [Fair Labor Standards Act] and in maintaining the status quo on the exemption after the decision in Coke in 2007—namely, increased costs and institutionalization of our elderly and infirm populations—will clearly be the end result if the District Court’s Orders are overturned and these regulations are reinstated. These policy decisions have already been made by Congress, and the DOL cannot undo those decisions and substitute its own judgment in their place.”
The members of Congress submitting the amicus brief supporting NAHC included:
Sen. Mitch McConnell, Senate Majority Leader and a member of the Committee on Appropriations;
Sen. Pat Roberts, Member of the Committee on Health, Education, Labor, and Pensions (HELP);
Sen. Lamar Alexander, Chairman of the HELP Committee, and Member of the Committee on Appropriations;
Sen. Roy Blunt, Member of the Committee on Appropriations and Chairman of the Subcommittee on the Department of Labor, Health and Human Services Subcommittee;
Sen. John Boozman, Member of the Committee on Appropriations;
Sen. Mike Enzi, Chairman of the Committee on the Budget and Member of the HELP Committee;
Sen. Johnny Isakson, Member of the HELP Committee;
Senator Marco Rubio, Member of the Committee on Small Business and Entrepreneurship;
Representative Tim Walberg, Member of the House Committee on Education and Workforce; andRepresentative Lynn Jenkins, Member of the House Committee on Ways & Means.
As previously reported, in January, DOL appealed the U.S. District Court’s ruling that invalidated multiple regulations issued by DOL that would eliminate the “companionship services” exemption from minimum wage and overtime compensation requirements under the FLSA. The court also invalidated a DOL rule that would prohibit home care companies from applying the companionship services and live-in domestic services exemptions to their workers. The Court of Appeals for the District of Columbia will consider the appeal with oral arguments before a three-judge panel scheduled for May 7, 2015.
DOL filed its initial brief for the appeal on February 20. NAHC submitted its reply brief on March 30. One of the differences from the original action before the District Court is that other parties have the opportunity to submit amicus briefs in which the parties clearly express to the court which side of the litigation they support.
The amicus briefs supporting NAHC responded forcefully to claims made by DOL in its initial brief filed to the court on February 20. DOL has claimed that the district judge made errors in interpreting the FLSA and in ruling whether a regulation is within the power of a federal agency. The central argument by DOL is that the U.S. Supreme Court established that it is within DOL’s discretion to define and delimit the FLSA exemptions at issue, and that the only grounds for invalidating its discretionary action is if that action is found to be arbitrary and capricious. DOL claims a reasonable basis to change the 40 year old rule based on changes in the home care industry, the “professionalization” of home care aide work, and the shift of the work to a vocation rather than an avocation. The lower district court rejected these same DOL arguments.
In response to DOL, NAHC and its supporters have highlighted significant concerns ignored by DOL about eliminating the companionship exemption. The members of Congress emphasized that DOL is disregarding Congressional intent and authority in such a way that will result in increased costs and institutionalization of elderly and infirm populations. The ten state Attorneys General, led by Kansas, stated that the DOL rules would negatively affect their states’ fiscal interests in administering home care programs under Medicaid and raise constitutional concerns regarding the states’ sovereign interests. “In short, the Department’s new regulations expose States to an unfunded liability for overtime wages under the FLSA,” the states wrote in their brief.
The states further argued that the rule will “threaten the operational viability of this program, both in letter and spirit”—harming not only consumer care, but also workers by forcing employers to cap hours in order to stay within the constraints of Medicaid rates.
The state Attorneys General submitting the amicus brief are: Kansas, Arizona, Georgia, Michigan, Nevada, North Dakota, Tennessee, Texas, and Wisconsin.
The other amicus briefs similarly expressed concerns about the negative consequences of the rules on both workers and patients. ADAPT and NCIL highlighted concerns specifically about the consequences for disabled people
“The new rule will also have highly disruptive effects on the lives of disabled people,” the disability groups wrote. “In many cases, people will lose services which enable them to live in at home, resulting in forced institutionalization. DOL’s action will, therefore, harm both attendants – the very workers it intended to assist – and people with disabilities.”
The Court of Appeals for the District of Columbia will hear oral arguments before a three-judge panel on May 7, 2015. NAHC will continue to provide updates regarding the lawsuit.