NAHC Seeks Stay from Supreme Court in Overtime Lawsuit
September 28, 2015 02:49 PM
The National Association for Home Care & Hospice (NAHC), along with its co-plaintiffs, filed an Emergency Application to Stay the Court of Appeals overtime lawsuit ruling with the U.S. Supreme Court until the Supreme Court has the opportunity to review the merits of an appeal fully. The application for a stay is needed to prevent the Department of Labor (DOL) rules from taking effect on or about October 13, 2015. As previously indicated in NAHC Report (see previous article here), the Court of Appeals issued a “per curiam” ruling that denied NAHC’s request for a stay as well as the DOL request to expedite the court’s mandate. That meant that NAHC had to shift the matter to the Supreme Court.
The stay application is directed to Chief Justice John Roberts as he is responsible for emergency motions involving the U.S. Court of Appeals for the District of Columbia Circuit. Generally, the Supreme Court justices give the other party in the lawsuit several days to reply to the application for an emergency stay prior to the Justice issuing a ruling. It is expected that Chief Justice Roberts will rule before the October 13 deadline and very likely within the next 10 days.
In its brief supporting the application, NAHC and its co-plaintiffs explain that the Court of Appeals ruling erroneously found that an earlier Supreme Court ruling involving the overtime exemptions foreclosed any consideration as to whether the “plain language” of the Fair Labor Standards Act (FLSA) prohibited the DOL new rules. The original federal District Court ruling issued in January held that FLSA exemptions clearly are applicable to employees of third-party employers (home care companies).
The NAHC brief also argues that the standards for a stay are met in that it is likely that the Supreme Court will agree hear the appeal (four Justices must agree to hear the case) and that home care companies, consumers, and workers will be irreparably harmed if the DOL rules prematurely take effect. The evidence supporting the risk of harm includes information regarding the lack of preparedness in state Medicaid programs to address the new cost of overtime and the history of lost business, reduced working hours, and care planning confusion when individual states have dropped the federal exemptions on “companionship services” and “live-in domestic services.”
The brief notes the discriminatory impact of the DOL rules that permit the exemptions when the worker is directly employed by the consumer, but denies the exemption if the worker is employed by a third-party home care company. The result is that the exemption is applied to only some home care employees simply based on the nature of the employer even though the employees engage in identical work. Among the absurd outcomes is that home care consumers who have the wherewithal and willingness to take on the difficult role of employer have an advantage in gaining access to affordable care over the person who uses a home care agency because their infirmities prevent them from fulfilling an employer’s duties.
Stay tuned to NAHC Report for any breaking updates on this important litigation.