The DOL’s End Around Congress On The FLSA — A Sign Of Things To Come?

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Beginning on January 2, 2015, the Fair Labor Standards Act’s minimum wage and overtime protections will apply to home care assistance workers who work with the elderly and people with illnesses, injuries or disabilities.  This is the first major regulatory action by the U.S. Department of Labor under the new Secretary of Labor, Thomas Perez.

Yesterday, the DOL issued a Rule yesterday which would extend the FLSA’s coverage to those workers for the first time in the law’s 75 year history.  Although the FLSA already applies to direct care workers who work in institutional setting, like a hospital or hospice center, the DOL had previously excluded home health care workers from the FLSA’s coverage under a provision exempting those who provide ”companionship services.”   The new rule will apply to all home care workers, including live-in workers.

As usual, politicians on different sides of the aisle differ on the impact of the law. Democrats and the DOL estimate that the new rule will affect 2 million personal care workers in the United States, while Republicans believe that estimate is significantly inflated and that, if anything, it will lead to a decrease in employment.

But, the real question on everyone’s mind is whether, given gridlock in the Congress, the Obama Administration plans to effectuate as much change as it can on American employers through regulatory action.  In the past, the Administration has attempted to circumvent Congress with regulations relating to union election rules and changes to the way that wage-hour laws are enforced, but with little success.  This seemingly modest change to the FLSA regulations may be a sign of things to come.