DOL home care rule stands in wake of petition denial
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Wednesday, June 29, 2016

DOL home care rule stands in wake of petition denial

By Pamela Wolf, J.D. The Supreme Court has declined to take up a challenge to the Labor Department’s revised domestic worker regulations that extend FLSA minimum wage and overtime protections to home care workers, leaving the final rule in place. On June 27, the Court denied the petition for certiorari in Home Care Association of America v. Weil (Dkt. No. 15-683), as well as several other petitions filed in labor and employment cases. Home care rule. In Home Care Association of America, the D.C. Circuit upheld the so-called home care rule, despite a district court’s earlier conclusion otherwise. The questions that the Justices have declined to address are whether:
  • The Court intended in Long Island Care at Home, Ltd. v. Coke to allow the DOL to deprive all third-party home care employers (who employ more than 90 percent of all home care employees) of their statutory right to avail themselves of FLSA exemptions to overtime.
  • 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 among the circuits.
  • The DOL’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.
Secretary of Labor Thomas Perez quickly issued a statement applauding the High Court’s decision not to take up the case: "Today’s decision by the court not to review a challenge to the Final Rule ensures that the rule can fulfill President Obama’s vision of an economy where hard work pays off and responsibility is rewarded. That will mean greater economic stability for so many hard-working people. For everything they do for our families, they deserve—and now they will get—a fair shot at being able to take care of their own. The final rule will also mean a more stable and professional home care workforce, benefitting consumers of these services and better meeting the needs of an aging population." Tribal labor relations. The Court also denied a petition for cert. in Little River Band of Ottawa Indians Tribal Government v. NLRB (Dkt. No. 15-1024), where the tribal government (band) had asked the Justices to tell the NLRB to stay out of tribal labor relations. Specifically, the band asked the Court to resolve the question of whether Congress gave the Board the power to nullify tribal labor relations laws that govern the tribe’s employment of public employees on tribal trust lands. The petition sought review of a Sixth Circuit decision that according to the band directly conflicts with a Tenth Circuit holding, as well as the reasoning, although not the results, of a D.C. Circuit ruling. The band also pointed to a subsequent Sixth Circuit panel’s endorsement of the dissent in this case and declaration that the later panel would have followed the Tenth Circuit instead. Other petitions. The Court also denied cert. in a number of other labor and employment cases, including:
  • Flowers v. Troup County School District (Dkt. No. 15-1144), raising the question of whether the standard of proof established by Reeves v. Sanderson Plumbing Products, Inc. applies in a Title VII action. The petition sought review of an Eleventh Circuit decision holding that the existence of an unlawful motive in this Title VII action (Reeves was filed under the ADEA) could not be established by showing a prima facie case as well as the falsity of the employer’s explanation for the adverse employment action without additional proof of discrimination.
  • Pfeil v. State Street Bank and Trust Company (Dkt. No. 15-1199), which sought review of a Sixth Circuit decision that raised two questions under ERISA: (1) Whether the Court’s decision in Fifth Third Bancorp v. Dudenhoeffer affords fiduciaries for employee stock ownership plans (ESOP) per se immunity from fiduciary liability whenever the underlying company stock investment in the ESOP trades in an "efficient market," no matter how speculative the stock has become or how close the company is to filing bankruptcy; and (2) whether ERISA’s duty of prudence requires a plan fiduciary simply to monitor plan investments, or whether it also has a substantive component that requires fiduciaries to remove investments from the plan that are objectively imprudent–i.e., investments that are too risky to hold in a plan based on objective characteristics.

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