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Sunday, June 23, 2024 | Back issues
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Hospice Workers See Overtime Rule Crumble

WASHINGTON (CN) - In a final blow to the order authorizing overtime for home care workers, a federal judge slammed an agency's redefinition of terms set by Congress.

The department order, signed in October 2013, sought to redefine the term "companionship" that had for over 40 years been used against certain hospice workers under the Fair Labor Standards Act, exempting their employers from the overtime and minimum-wage requirements that other industries face.

Before the new rule could take effect, three trade associations sued in Washington to keep the exemptions intact.

U.S. District Judge Richard Leon sided with those employers on Dec. 22, calling the removal of third-party employers from the exemption an act of "unprecedented authority" of the department.

Leon vacated the second prong of the order on Jan. 14, finding that the department overreaching as to the "companionship" definition with similar breadth as it had in the portion of the order thrown out in December.

"There is, to be sure, ambiguity in the meaning of the term 'companionship services,' and Congress has explicitly delegated authority to the department to define the term," Judge Leon wrote. "But that does not grant it a blank check to do so in a way that contradicts the act itself."

The new definition that the department promulgated defined companionship as "the provision of fellowship and protection for an elderly person or person with an illness, injury, or disability who requires assistance in caring for himself or herself."

Judge Leon said this new definition excluded nearly all practical forms of care actually received by the elderly or disabled, a circuitous way to render the exemption meaningless.

"The statutory language of the exemption makes clear that companionship services are services provided to the elderly and disabled individuals who are 'unable to care for themselves,'" he wrote. "Now the department is attempting to issue a regulation that would write out of the exemption the very 'care' the elderly and disabled need, unless it were drastically limited in the quantity provided so as to be of little practical use."

Leon noted that the Department of Labor's efforts tackled one of the very areas of the statute that was not ambiguous.

"The exemption clearly targets workers who provided services to those who need care," he wrote." "Indeed, what services could possibly be required more by those 'unable to care for themselves' than care itself?" (Emphasis in original.)

Leon also pointed out repeated failures of Congress since the FLSA's passage in 1974 to change the definition itself, a signal of its intent to keep the department from tampering with it.

"Redefining a 40-year-old exemption out of existence may be satisfyingly efficient to the Department of Labor, but it strikes at the heart of the balance of power our Founding Fathers intended to rest in the hands of those who must face the electorate on a regular basis," he wrote.

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