Overtime Lawsuit Update: Headed for the U.S. Supreme Court
September 18, 2015 11:06 AM
The challenge to the validity of the Department of Labor (DOL) rule changes on overtime compensation for home care aides is on its way to the U.S. Supreme Court. However, there is a short stop before the actual Supreme Court filings take place.
In order to protect the interests of home care consumers, workers, and providers, the National Association for Home Care & Hospice (NAHC) and its co-plaintiffs have asked the Court of Appeals to stay its August ruling until such time as the Supreme Court can decide whether it will hear the appeal. A stay is needed to prevent the rule changes from prematurely taking effect. Based on the appellate process, the rules are expected to take effect on October 13 barring no intervening court actions.
NAHC and its co-plaintiffs filed a Motion for Stay on September 8 arguing that stakeholders in the rule will be irreparably harmed if the rule goes into effect while the matter is pending review at the Supreme Court. In its briefs, the plaintiffs also argue that there is a substantial question for the Supreme Court to hear and that it is probable that the court will accept the appeal for review. Supreme Court review is discretionary rather than guaranteed.
The DOL countered the stay request with its own motion to expedite the effective date of the appellate ruling. DOL argues that workers are experiencing unnecessary harm with any delay in the implementation of the challenged rules. While DOL seeks the ruling to be expedited, it has also issued a policy notice that it will not enforce the rules for 30 days after they become effective to give employers and funding sources, e.g., Medicaid, a chance to adjust. DOL also intends to maintain its earlier policy position that indicates it will exercise discretion in enforcing the rules after the 30 day period dependent on the good faith actions of employers and state Medicaid agencies.
The DOL non-enforcement policy offers no real protection to employers, as it does not deter private enforcement by employees and ex-employees and their legal counsel. As such, the only real opportunity for protection lies in the pending request for a stay of the ruling along with the effort to secure a reversal of the appellate court by the Supreme Court.
A decision on the pending motions is expected quickly. If the appellate court denies the stay, NAHC will ask the Supreme Court to issue a stay while it reviews the case.