NAHC Awaits Supreme Court Action on Overtime Lawsuit
May 5, 2016 08:52 AM
The wheels of justice move slowly, particularly when the U.S. Supreme Court is involved. On November 19, 2015, NAHC and its co-plaintiffs filed a “Petition for Writ of Certiorari” with the U.S. Supreme Court following the Court of Appeals reversal of the favorable District Court ruling in the lawsuit challenging the validity of the Department of Labor rules that effectively eliminated the overtime exemptions for personal care attendant and live-in services. Those rules went into effect on October 13, 2015, after Chief Justice Roberts denied the request for a stay of the Court of Appeals decision.
The petition is the first step in a Supreme Court appeal. It asks the Court to grant a hearing on the lawsuit. Each year, the Supreme Court receives 7,000-8,000 appeals and grants hearings on about 80. That means the odds of an actual Supreme Court review of a lawsuit’s merits is about 1 percent.
The Supreme Court originally scheduled the NAHC appeal for review on March 25, 2016, but then later rescheduled it for April 1. Each Friday during a Supreme Court term, the justices meet to determine if they will hear any pending cases. Their determinations are issued normally the following Monday. However, the Court has not yet issued a determination in the NAHC appeal on any of the five Mondays that followed the April 1 conference of the justices. What does that mean?
Supreme Court watchers have long speculated as to the possible meaning behind the Court’s occasional “relisting” of pending petitions. Some believe it has no meaning. Others feel that it means the justices are divided as to whether a case should be heard and time is taken to allow justices to convince others of their position. Probably the best assessment comes from SCOTUSblog where a relist watcher, John Elwood, states: “Only time shall tell if four Justices have true love’s passion for the question whether the Department of Labor improperly denied third-party home care companies the ability to avail themselves of statutory home-care overtime exemptions.” http://www.scotusblog.com/2016/04/relist-watch-act-ii-scene-2/
The home care community can take some solace that the Court is giving the case more attention than usual. While the odds are always against the Court taking any case, NAHC successfully convinced the Court to hear two earlier lawsuits involving the overtime exemption, eventually prevailing with a unanimous ruling reversing a Court of Appeals decision that denied the exemption with respect to employees of home care companies. Since these appeals, the Department of Labor “did a 180” on the issue by establishing the new rules that deny the exemption to third-party employers, leading to the current lawsuit.
An added element in the Court now is the unfilled seat left by the unexpected death of Justice Scalia who was on the Court for the unanimous 2007 ruling in favor of home care. With only eight justices today, it is more difficult to reach the necessary four justices who must agree to hear a case. Optimistically, the four-time relisting of the home care lawsuit may mean that several justices, but not yet four, want to hear the case. However, as Mr. Elwood observed, only time will tell.
NAHC has not limited its advocacy on the important issues involving overtime compensation to the case before the Supreme Court. Legislation is pending in the House and Senate that would reverse the Department of Labor rules. Further, NAHC initiated efforts with the Centers for Medicare & Medicaid Services (CMS) to require Medicaid programs to ensure that patients needing home care services that triggered overtime costs would have continued access. CMS joined forces with the Department of Justice issuing guidance to the states in that regard, warning that violations of the Americans with Disabilities Act (ADA) would occur if the states did not make such care available. Further, the Department of Labor has issued detailed guidance on the new rules, helping home care companies, state Medicaid programs, and managed care organizations to fully understand what it takes to comply with the new overtime rules.
As we have said in NAHC Report on this issue many times since the 1990s, “stay tuned” for further developments as the battle goes on.