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ADVOCACY UPDATE
June 5, 2014
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 In This Issue
HCAOA Hosts Successful Congressional Lobby Day
HCAOA President Urges Secretary of Labor to Extend Compliance Deadline for FLSA Final Rule
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 HCAOA Hosts Successful Congressional Lobby Day
On May 21, 2014, HCAOA members traveled to Capitol Hill to advocate on behalf of the interests of home care providers, their workers and clients. These efforts to build the knowledge base of legislators with regard to concerns of home care providers is essential to the future of home care services.
HCAOA members advocated for federal legislation to address worker misclassification, reforms to the employer mandate of the Affordable Care Act, and to extend the compliance deadline for the Fair Labor Standard Act (FLSA) final rule on domestic workers by 18 months beyond the current deadline of January 1, 2015. To learn more about these efforts please see HCAOA's legislative agenda by clicking on this link.
HCAOA members also participated in a "virtual" lobby day on May 21st in support of legislation to address worker misclassification. Some 527 grassroots messages were sent to Congress. These efforts added volume to the voices of HCAOA members who were in Washington, D.C. to lobby on this issue.
While in Washington, D.C., HCAOA members heard presentations from experts in long term care and labor policy. They also heard from officials from the U.S. Small Business Administration and the U.S. Department of Labor, and a member of Congress, Rep. Katherine Clark (D-MA), who has personally experienced the benefits of home care within her own family.
"Home care has allowed me to be a daughter..."
- Rep. Katherine Clark
Please make plans to join HCAOA at next year's Congressional Lobby Day and help educate members of Congress on the concerns of home care providers.
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HCAOA President Urges Secretary of Labor to Extend Compliance Deadline for FLSA Final Rule
In a letter dated May 21, 2014, HCAOA President Peter Ross urged the U.S. Secretary of Labor to take action on requests from the National Association of Medicaid Directors and the National Council on Disability to extend the deadline for compliance with the FLSA final rule on domestic workers for 18 months beyond the current deadline of January 1, 2015. Click on the following link to see a copy of this correspondence.
In his letter, President Ross expressed that in-home personal care providers are grappling with how to arrange care for existing and new clients seeking services, especially those in need of "live-in"services that require a home care worker to stay in a client's residence overnight. He also highlighted that workforce development challenges exist in light of the fact that many providers will not be able to afford overtime pay and must augment their home care workforce to handle services when they exceed 40 hours of service in a week. He acknowledged challenges in establishment of tracking mechanisms for break and meal time, travel time, and sleep time for home care workers.
HCAOA urges you to ask your members of Congress to weigh in with the Secretary by sending a letter to the Department of Labor supporting the position of HCAOA and other organizations. Click on the following link to see an ACTION ALERT on this initiative.
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Congress Addresses Minimum Wage
On April 30, 2014, GOP senators blocked a Democrat-led effort to raise the federal minimum wage to $10.10 (a 39% increase above the current minimum wage)-although Democrats said they planned to bring the issue up again and some in both parties called for a compromise. The Senate voted 54-42 to limit debate on taking up the proposal, falling short of the 60 votes needed. Even if it had passed in the Senate, it was clear the measure would not succeed in the House of Representatives.
The outcome had long been anticipated. It's the latest in a series of votes that Democrats plan to use to highlight campaign priorities ahead of November. Immediately after the votes, Maine's senators Republican Susan Collins and Independent Angus King again called for a compromise on the issue.
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Department of Labor Moves Forward with New Regulatory Mandates Covering Minimum Wage and Overtime Requirements
Earlier this year, President Obama directed the federal Department of Labor (DOL) to undertake two new initiatives. The first will increase the minimum wage that is allowed to be paid for employees working under certain federal contracts and subcontracts. The second will revise the so-called "white collar" exemption from the overtime requirements of the Fair Labor Standards Act (FLSA).
Contractor Minimum Wage
On February 12, 2014, President Obama signed Executive Order 13658 to increase the minimum wage for employees working under certain federal contracts and subcontracts to $10.10 per hour beginning January 1, 2015. The minimum wage level on these contracts will be indexed in future years to inflation. The Executive Order broadly applies to procurement contracts for services and construction. It also applies to certain "contract-like instruments." At this point, the precise types of contracts and contract-like instruments are unclear and will need to be further defined through DOL regulations. The impact of this new wage mandate in conjunction with the effective elimination of the companionship services exemption will be significant for many home care providers whose business includes an appreciable amount of federal contract work. Under the terms of the Executive Order, DOL is directed to issue implementing regulations by October 1, 2014. DOL has developed draft proposed rules that were sent for internal review on May 7, 2014 and has stated that it intends to publish the rules in the Federal Register as soon as this month.
White Collar Exemption
The FLSA contains an exemption for "executive, administrative, and professional" employees, which is commonly referred to as the white-collar exemption. Very generally speaking, in order for an employer to consider an employee exempt under this exemption, the employee must be paid a minimum salary of $455 per week, must be paid on a "salary basis," and must meet certain tests that examine the employee's job duties. On March 13, 2014, President Obama directed DOL to undertake a review of the regulations and propose revisions. DOL has begun meeting with stakeholder groups to consider changes to the regulations. While it is too early to say what changes will be proposed, it is all but certain that DOL will propose an increase in the minimum salary level. Some interest groups have urged that the rate be raised to about $1,000 per week. If this change were to be implemented, no employee earning less than $52,000 per year could be considered an exempt white-collar employee. It is also likely that DOL will consider changes to some of the duties tests under the regulations, perhaps adopting a standard looking carefully at the amount of time that employees spend performing exempt versus non-exempt tasks. While there is no firm timeline set for these regulations, the latest regulatory agenda indicates that DOL anticipates publishing a proposal in November 2014.
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States In the News
California Ballot Initiative
HCAOA has been on the front line in opposition to California Proposed Initiative 13-0064 backed by that the Service Employees International Union (''SEIU'') that would require home care organizations to expend at least 75 percent of their total annual home care service revenues on direct home care service costs assisting seniors and individuals with disabilities. HCAOA and other stakeholders in California received credible information that SEIU has abandoned their efforts to place the proposed 13-0064 home care initiative on the ballot for the upcoming 2014 election.
The SEIU ballot initiative is a direct assault on the home care industry, threatening a vital source of support for many of California's most vulnerable populations that allows them to continue living in their homes safely and comfortably. Passage of this initiative would put many hardworking homecare professionals out of business, placing even more stress on families in need of support. HCAOA has held that the initiative is unconstitutional, unlawful and part of a systematic campaign by the SEIU to pressure home care employers to provide assistance to the SEIU in the unionization of their employees.
SEIU has ceased their signature gathering efforts and have no plans to pursue this in the near future. While this is good news for now, HCAOA will continue to be proactive and vigilantly work with our California stakeholders. We will be prepared to respond in the event SEIU pursues other avenues outside of the ballot initiative (including any legislative efforts) to achieve their political goals to drive home care organizations out of business.
HCAOA Opposes California Home Care Legislation
HCAOA has opposed the Home Care Services Consumer Protection Act (AB1863). This bill would license domestic referral agencies and lacks sufficient disclosure requirements regarding consumer/employer responsibilities.
Existing law establishes the Home Care Services Consumer Protection Act, which provides, on and after January 1, 2015, for the licensure and regulation of home care organizations, by the State Department of Social Services, and for the registration of home care aides. Violation of the act is a misdemeanor. AB 1863 would make the provisions of the act applicable to domestic home care aide referral agencies organizations, including licensure, fees, enforcement and fines, and regulation of registered home care aides having agreements with those agencies organizations.
AB 1863 passed the Assembly and HCAOA is opposing its passage in the Senate. HCAOA has sent an action alert to HCAOA members in California to oppose this initiative.
Seattle's City Council Approves $15 an Hour Minimum Wage
On June 2, 2014, the city council in Seattle Washington unanimously approved an increase in the city's minimum wage to $15 an hour, making it the nation's highest by far. Washington already has the nation's highest state-level minimum wage, at $9.32. That rate also applies to the city.
The increase to $15 in Seattle will take place over several yearsbased on a scale that considers the size of and benefits offered by an employer.It will apply first to many large businesses in 2017 and then to all businesses by 2021. The first increase, on April 1, 2015, brings the minimum wage to $10 for some businesses and $11 for others.
Objections have come from many sectors including franchisees, which under the law are classified as large businesses and must raise their minimum wage before small businesses. The International Franchise Association announced it would file a lawsuit against the city claiming discrimination.
Several states have passed or are considering proposals to adopt a $10.10 an hour minimum wage. Most recently, Michigan raised its hourly minimum to $9.25.
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Home Care Association of America
412 First Street, SE Suite 3
Washington, DC 20003
202.480.2972
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