When DWBR took effect in November 2010, it expanded labor protections for domestic workers in New York State by providing, among other things, for their right to: (1) overtime pay at time and one-half of their regular rate of pay; (2) a day of rest (consecutive 24 hours) every seven days, or if the domestic worker agrees to work on that day s/he must be paid at overtime rate of pay for the hours worked; (3) three days of rest each year; (4) protection under the New York State Human Rights Law; and (5) a special cause of action for domestic workers who suffer sexual or racial harassment. Initially, DWBR applied to domestic workers, including home health aides (“HHAs”), employed only by individual households (i.e. families, private individuals), and not to domestic workers employed by third party employers, such as home health care agencies. This was partly because DWBR references and incorporates some of the Fair Labor Standards Act’s (“FLSA”) provisions and exemptions that apply to domestic workers.
However, in October 2013, the USDOL passed the Final Rule regarding the Application of the FLSA to Domestic Service (“Home Care Final Rule” or “Final Rule”), which among other things, changed the applicability of the FLSA’s exemptions for domestic workers to third party employers. As a trickledown effect, the Final Rule also changed the applicability of New York’ DWBR to third party employers.
Specifically, one of the more significant changes introduced by the Final Rule is that it explicitly eliminated the availability of the FLSA’s companionship and live-in exemptions for third party employers. In the past, these exemptions were widely claimed by home health agencies to avoid some of the FLSA’s requirements, such as paying overtime compensation to HHAs. The FLSA’s companionship and live-in exemptions not only allowed third party employers to provide fewer labor law protections to domestic workers under the federal law, but since many state laws, like DWBR, often incorporate FLSA provisions, the exemptions also shielded employers from following certain state labor laws as well.
Because the Final Rule has increased coverage for domestic workers under the FLSA by prohibiting third party employers from claiming these exemptions, by way of its incorporation in DWBR, it has also expanded the applicability of DWBR beyond just individual households. The DWBR now applies to domestic workers and HHAs employed by third party employers, and serves as only one example of state labor laws affected by this change.
As such, DWBR now offers a wider range of protections to domestic workers employed by home health agencies in New York (i.e. overtime compensation, paid leave, sexual and racial harassment protections). The DWBR may also possibly be useful in providing an alternative means of coverage for overtime protections in cases where the agency is a non-for-profit organization that elected not to be covered by New York’s Minimum Wage Orders.
TIMING AND EFFECTIVE DATE
The Final Rule was intended to go into effect in January 2015, but in June 2014 several home care companies filed a lawsuit in federal court challenging the Final Rule’s validity, resulting in postponement of the Final Rule’s effective date and enforcement. After heavy litigation, the D.C. Circuit Court upheld the Final Rule in Home Care Association of America v. Weil, 799 F.3d 1084 (D.C. Cir. 2015) in August 2015. Although the Weil decision was appealed, the U.S. Supreme Court issued an order denying the request to review the Court of Appeals decision on June 27, 2016, leaving the Final Rule intact. Recently, on June 23, 2017, the U.S. District Court for the Southern District of New York ruled that the Final Rule became effective on January 1, 2015. See Hypolite v. Health Care Servs. of NY Inc., 2017 US Dist. 97897 (S.D.N.Y. June 23, 2017).
