Alexander Acosta was sworn in today as the 27th U.S. Labor Secretary. The Secretary of Labor heads the Department of Labor, which enforces and passes regulations involving:
- The workplace, and
- Other employment controversies.
The DOL came under fire during Obama’s presidency for revising regulations to create new rules that Congress refused to pass.
Labor Secretary Changes the Law Regarding Caregivers
In 2013 the DOL moved forward with its Final Rule altering the “companion exemption” to the Fair Labor Standards Act. FLSA traditionally exempted certain domestic workers (i.e., persons employed about the home). In 1974, Congress amended the FLSA to include some, but not all, domestic workers. Companions, sometimes referred to as “elder sitters,” or “personal attendants”, were not covered by the FLSA. When Congress expanded the FLSA to cover domestic workers but not companions, the FLSA adopted regulations defining the type of work that qualified for the companion exemption. Previous efforts to increase or decrease protections for companions never made it through Congress. Obama directed the Labor Secretary and the DOL to modify the regulations, eliminating the companion exemption for any worker employed by a third-party employer.
The regulations also narrowed the type of work that constitutes “companion” services. Elder care advocates criticized the regulations, while union advocates applauded them.
New Labor Secretary Under Trump
President Trump promised to roll back the overtime regulations, claiming they harmed small businesses. We don’t know if iAcosta will defend the Obama administration’s overtime rule, or try to repeal it. According to onlabor:
Allied Progressive Executive Director Karl Frisch criticized Acosta as someone who would not likely fight for workplace safety and fair wages. According to Bloomberg BNA, some Republicans have discussed replacing the rule with a more modest proposal, raising the threshold salary to $35,000. Gregory Jacob, former DOL solicitor and friend of Acosta, thinks this is unlikely and he is more apt to withdraw the rule by publishing notice in the federal register. Catherine Ruckelshaus, general counsel for the National Employment Law Project, points out that a positive court ruling would make it difficult for President Trump to repeal, given that a repeal would have to go through notice and comment. Furthermore, continuing with the litigation presents “a tension between whatever desire they have to invalidate the rule and accepting a legal theory which… reduces their rulemaking authority,” says Sachin Pandya, employment law professor at the University of Connecticut.
I presume Acosta will hold office for a while before making drastic changes. We’ll have to wait and see.
For now, most caregivers are entitled to overtime when they work more than 40 hours in a week. In California, caregivers are also entitled to overtime when they work more than 9 hours in a day.
If you plan to hire a caregiver, or if you work as a caregiver, contact the Nuddleman Law Firm, P.C. to understand the rules affecting you.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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