Appeal Filed with Supreme Court on Overtime Lawsuit
November 23, 2015 01:49 PM
The National Association for Home Care & Hospice (NAHC) and its co-plaintiffs took their challenge to the validity of U.S. Department of Labor (DoL) rules impacting overtime compensation for certain home care employees to the U. S. Supreme Court late last week. A Petition for Writ of Certiorari to the Supreme Court was filed on November 19, challenging the DoL rules that significantly changed the “companionship services” and “live-in domestic services” exemptions to the Fair Labor Standards Act (FLSA) provisions on minimum wages and overtime compensation.
The appeal comes just short of a year after the U.S. District Court issued its decision finding that the DoL exclusion of third-party employers (home care companies) from “availing themselves” of the exemptions violated the plain language of the FLSA. District Judge Leon found that the purpose of the exemptions is to help make home care affordable for the elderly and persons with disabilities.
On appeal to the U.S. Court of Appeals for the District of Columbia, a three judge panel reversed the lower court’s decision, concluding that the Supreme Court previously foreclosed any argument as to whether the FLSA plain language required the inclusion of third-party employers. As of October 13, 2015, the challenged rules are in effect across the country.
Supreme Court review of the appeal is discretionary. Each year, the Court agrees to review only a small percentage of the cases submitted for consideration. NAHC believes that this case has increased chances for being accepted for review because the Supreme Court had previously recognized the importance of the public policy issue presented in the case when it chose to review a similar matter in 2005 and 2007 in a case brought by NAHC. In Long Island Care at Home v. Coke, the Supreme Court held that the “companionship services” exemption could apply to employees of third party employers. The Coke decision was the case relied upon by the Court of Appeals in its finding that Supreme Court foreclosed the argument that the plain language of the FLSA required the application of the exemption to all employees.
The most crucial part of any “cert petition” is the Questions Presented to the Supreme Court. In NAHC’s appeal, the questions are crafted to convince the Court that the case involves important public policy issues and that the appellate court ruling conflicts with the Supreme Court’s earlier decision on the FLSA exemption. The Petition sets out the Questions Presented as:
“This case presents important questions left open by this Court’s opinion in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 120 (2007), which upheld the exemption of third-party home care employees from the overtime provisions of the Fair Labor Standards Act (FLSA). The Department of Labor has now issued a rule that for the first time denies third-party employers their right to “avail themselves” of the statutory home care exemptions, presenting the following questions of great public importance to millions of home care providers and elderly and disabled home care consumers:
Whether this Court intended in Coke to allow the Department to deprive all third-party home care employers (who employ more than 90% of all home care employees) of their statutory right to avail themselves of exemptions to overtime under the FLSA.
Whether the D.C. Circuit erred in finding that Congress intended to exclude employees of third party employers from the home care exemptions, thereby conflicting with Coke’s contrary reading of Congressional intent and creating a conflict in the circuits.
Whether the Department’s new rule should be found to be unreasonable due to the agency’s failure to meaningfully address the relevant factors of unaffordability and lack of adequate state funding of the increased costs of home health care under the new rule.”
Essentially, the bases argued to convince the Court to take review of the matter are that the appellate court misread the earlier Supreme Court decision, the issues presented have significant impact in today’s society, and that DoL has usurped the power of Congress in promulgating rules that gut the exemptions that have been in effect for 40 years. The full petition can be found here.
The process that will be followed in the appeal includes an opportunity for the Department of Labor to file an opposition to the Petition. That opposition is fully expected. NAHC and its co-plaintiffs will then have the opportunity to file a response to the opposition. In addition, it is expected that “amicus curiae” briefs will be filed by outside parties that support one side or the other in the case. A number of advocacy groups for persons with disabilities have already indicated that they will file a brief in support of the NAHC petition.
It can be anticipated that it will take 75-90 days for the petition phase of the case to occur. At that point, the Court will issue a decision either accepting the case for review of rejecting it. If it is accepted, a scheduling of argument on the merits is likely for March or April 2016 with a decision in late June before the Court closes the term.
As the matter progress, look to NAHC Report for comprehensive updates.