Authored by Alex Passantino

On Thursday, the Department of Labor will publish in the Federal Register a notice announcing a limited duration non-enforcement policy regarding the Wage & Hour Division’s companionship services regulation.  The final rule was published more than a year ago and has an effective date of January 1, 2015.

The operational challenges faced by employers as a result of this regulation have been significant.  As a result, numerous trade associations, disability advocacy groups, and states requested extensions of the effective date.  The states, in particular, needed additional time “to adjust their publicly funded home care programs in order to comply with the FLSA, and specifically noted that time was needed for budgetary, programmatic, and operational adjustments.”

The Department, however, has refused to extend the effective date.  This means that employers, as of January 1, 2015, are obligated to comply with the regulatory provisions.  Nothing about the Department’s notice changes this obligation.  Instead, the Department has elected to take a non-enforcement position from January 1 through June 30, 2015, meaning that it will not itself enforce the law against employers.  From July 1 through December 31, 2015, “the Department will exercise its prosecutorial discretion in a manner that is consistent with this document when making determinations on a case-by-case basis as to whether to bring enforcement actions in the home care context.”

Notably, in choosing to take a hands-off enforcement approach, instead of extending the effective date, the Department undoubtedly will cause confusion within the regulated community.  The Department’s regulations are effective as of January 1, 2015.  The FLSA provides a private right of action.  The Department’s notice does nothing with respect to these private enforcement actions, and non-compliant employers unfortunately may have to find that out the hard way.