The Department of Labor’s Wage and Hour Division (WHD) recently announced that it will delay bringing enforcement actions against employers who violate the new minimum wage and overtime requirements imposed by the home care regulations that take effect on January 1, 2015.  See http://www.ofr.gov/OFRUpload/OFRData/2014-24144_PI.pdf.  The controversial rule, announced on September 17, 2013, extends federal minimum wage and overtime protections to an estimated two million workers by eliminating the Fair Labor Standard Act’s (FLSA) minimum wage and overtime exemption for certain home care workers.  29 C.F.R. Part 552.  This “companionship exemption” currently exempts persons who provide “companionship services” to persons who, because of advanced age or physical or mental infirmity, cannot care for themselves.  The revised regulations provide that the companionship exemption is not available to home care workers employed by a third-party company.  Additionally, the final rule narrows the definition of companionship services, thereby limiting the exemption for home care workers directly employed by the individual receiving the services.

According to the WHD’s October 7, 2014 announcement, for six months, from January 1, 2015 to June 30, 2015, the Division will not bring enforcement actions against any employer for violations of FLSA obligations resulting from the amended regulations.  After this grace period, the WHD will proceed with limited enforcement from July 1, 2015, to Dec. 31, 2015.  In deciding whether to prosecute, the DOL  will give “particular consideration” to “the extent to which States and other entities have made good faith efforts to bring their home care programs into compliance with the FLSA since promulgation of the Final Rule.”

Employers should understand that the effective date of the regulation, January 1, 2015, has not changed, and therefore home care companies could still face private enforcement efforts even during the WHD’s enforcement “grace period.”  As such, although enforcement is delayed, employers should make every effort to comply with regulatory changes in a timely manner.