Fair Labor Standards Act (FLSA) Informational Letter

November 9, 2015

Dear Colleague:

This letter is to inform you of a recent decision from the United States Court of Appeals for the District of Columbia that may impact your program. As you may know, the United States Department of Labor (DOL) issued the Home Care Final Rule to extend minimum wage and overtime protections to home care workers with an effective date of January 1,2015. The rule was challenged in federal court, which vacated the rule. However, the Court of Appeals for the District of Columbia recently affirmed its validity. While the opinion validating the Final Rule became effective on October 13, 2015, DOL has indicated that it will not begin enforcement of the Final Rule until November 12, 2015 (see http://www.dol.gov/whd/homecare/litigation.htm).

The Final Rule made several significant changes from the prior regulations, including: (1) revising the definition of "companionship services" to clarify and narrow the duties that fall within the term; (2) prohibiting third party employers from claiming the companionship or live-in exemptions; and {3) revising the recordkeeping requirements for employers of live-in domestic service employees (see http://www.dol.gov/whd/homecare/final rule.htm). The United States Department of Labor has published several fact sheets explaining the implications of the Final Rule on its website: see http://www.dol.gov/whd/homecare/factsheets.htm.

In addition, the Civil Rights Division of the United States Department of Justice and the Office for Civil Rights of the Department of Health and Human Services have issued joint guidance relating to implementing the Final Rule while complying with Olmstead v. LC., 527 U.S. 581 (1999) and Title ll´s integration mandate. Under this guidance, caution should be exercised while setting limits or caps on workers´ hours or travel time. Any such caps would need to account for emergency situations and situations where capping overtime hours would put an individual at risk of institutionalization or segregation. See http://www.hhs.gov/ocr/civilrights/resources/specialtopics/community/2014hhsdojdearcolleagueletter.pdf.

We thank you for your attention to these changes. If you have any questions regarding your specific program, please contact the appropriate State agency staff. Please be advised that this letter is for general information purposes only and does not constitute legal advice.


Sally Dreslin
Executive Deputy Commissioner
NYS Department of Health

Kerry A. Delaney
Acting Commissioner
NYS Office for People With Developmental Disabilities