Home Health & Hospice Week

HHAs hope for Supreme Court review.

Home health agencies may soon have a definitive answer on when they must pay home health aides time-and-a-half.

That's because the question may soon be--once again--in the hands of the U.S. Supreme Court.

This likely course of action follows a Sept. 1 decision by the U.S. Court of Appeals for the Second Circuit reaffirming that HHAs can't use the "companionship exemption" to avoid paying aides overtime pay rates in certain situations (see Eli's HCW, Vol. XV, No. 33).

Update: Attorneys representing the defendant in the closely watched case of Evelyn Coke vs. Long Island Care have filed a petition asking the Supreme Court to review the Second Circuit's most recent finding. The petition was filed Oct. 30.

The plaintiff now has 30 days in which to oppose the petition if she desires, according to the Home Care Association of New York State. "The certiori petition starts the process for Supreme Court action," Mark Kissinger of HCANYS tells Eli.

If the Second Circuit's decision stands, agencies in the court's jurisdiction--New York, Connecti-cut and Vermont--must cease claiming the companionship exemption to the Fair Labor Standards Act. A stay issued Oct. 13 prevents the Second Circuit decision from having the force of law in the court's jurisdiction immediately, pending Supreme Court review.

Background: HHAs subject to the federal FLSA must pay their covered employees at least the minimum wage ...quot; and they must pay a rate of one-and-one-half times the employee's regular rate whenever an employee works more than 40 hours in a given week. Failing to do so leaves the agency at risk for having to pay not only back wages but also significant penalties and attorneys' fees.

A vital exception: But agencies have long employed a standard FLSA exemption known as the "companionship services exemption" to sidestep the wage requirements for certain employees, notes attorney Stephen Zweig, partner in the New York offices of Ford & Harrison.

This exemption applies to "...any employee employed in domestic service ... to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves," as the terms are defined and delimited by the U.S. Department of Labor.

Watch For New Developments Soon

The Supreme Court could review the case by year's end. In the meantime, lawsuits wending their way through the federal court system in other jurisdictions could affect agencies' ability to employ the companionship exemption in other states, notes attorney Jonathan Greenbaum with Nixon Peabody in Washington, DC.

News flash: A home health agency in Virginia is the latest to face a collective action lawsuit in federal court related to the companionship exemption. Former employee Colleen Hanley filed the suit against the Williamsburg, VA-based Hand 'N Heart agency in June, but agency officials weren't served with the legal papers until earlier this month, reports the Newport News, VA Daily Press.

Collective actions related to the companionship exemption are also in the federal court system in Florida and Georgia.