Below please see a summary from last Friday's hearing. We will continue to provide information as it becomes available.

Anita

Judge Hints At Vacating Disputed DOL Caregiver Wage Rules

Share us on: By Daniel Wilson

Law360, Washington (January 09, 2015, 8:50 PM ET) -- U.S. District Judge Richard J. Leon seemed poised Friday to vacate the U.S. Department of Labor’s contentious regulation that would eliminate an exemption from minimum wage or overtime for most “companionship” domestic workers, pushing back against its claim that he should defer to its legislative interpretation.

In a heated hearing in the D.C. District Court, Judge Leon jumped on the argument of government attorney Julie Saltman from the get-go, pushing her to explain why the agency had sought to effectively “define away” congressional intent regarding the Fair Labor Standards Act exemption.

Saltman argued that the agency’s redefinition, whereby companionship workers employed by home care agencies and other third parties — as well as live-in domestic help — must be given overtime or minimum wage if more than 20 percent of their work time is spent carrying out care tasks like toileting or helping with dressing was based on a reasonable interpretation of legislative intent for the exemption.

Companionship care covered by the exemption, under the agency’s view of congressional intent, is similar to the type of “fellowship and protection” care that a babysitter provides for children, she said, drawing a sharp response from Judge Leon.

“What type of care does a babysitter provide? Do they change diapers and feed [the children]? They don’t just play checkers and Parcheesi,” Judge Leon said.

It is likely that the “lion’s share” of time spent by companionship workers would involve doing things that the elderly and infirm can’t do for themselves, Judge Leon argued, questioning how the 20 percent threshold used by the DOL had been decided.

“It’s based on what? A Ouija board? Was it plucked out of the air? Where did it come from?” he asked Saltman.

When the attorney explained that the figure was chosen as an easy to understand number — one workday out of the typical five each week — and had been chosen rationally, Judge Leon pounced, asking Saltman whether the agency had actually surveyed home care providers about the type of care their workers provide and had solid information to back that purportedly rational basis.

“I submit that it’s not there, and that’s not an accident,” the judge said. “The agency didn’t try to figure it out.”

Further, the practical effect of ruling in favor of the government would be to effectively “gut” his December ruling in the case, which had struck down part of the disputed rule, according to the judge, and he asked Saltman to explain why he should rule in favor of the DOL this time around.

The agency’s interpretation of congressional intent was reasonable, and it had crafted the rule — which would not have nearly as much of an effect on the industry as claimed by the plaintiffs — based on a thorough rulemaking process that had properly considered the nearly 26,000 comments received, Saltman said. The court should be “highly deferential” to that interpretation under the so-called Chevron test set out by the U.S. Supreme Court, she argued.

Maury Baskin of Littler Mendelson PC had earlier argued on behalf of the plaintiffs, a group of three trade associations, that the rule was both impractical and arbitrary. The type of care that would be subject to the 20 percent threshold — a number picked with no rational analysis — is the type of care that those who require companion carers cannot do without, and often the primary reason why those workers are hired, Baskin said.

Describing that care as “incidental” to those companion workers’ jobs runs contrary to the legislative intent of Congress when it established the relevant FLSA exemption, which was to ensure that the elderly and infirm have adequate care at an affordable price, according to Baskin.

Judge Leon said he would make a ruling on the merits of the case in a Jan. 14 hearing, prior to a temporary stay expiring.

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