The Department of Labor has proposed a new rule that would extend minimum wage and overtime protections to home care workers. Currently, home care workers are exempt from the Fair Labor Standards Act because these workers are considered “companions.” Advocates for a change to the law argue that the companionship exemption from overtime improperly puts home care workers, many of whom care for the sick and elderly, into the same category as babysitters. There are approximately two million home care workers in this country. According to the White House, 92% of home care workers are women, 30% are African-American, and 12% are Hispanic.
Posts Tagged ‘Overtime’
New Rule Proposed for Home Care Workers
Tuesday, January 17th, 2012Local Businesses Covered by FLSA if Employees Handle Materials
Friday, September 10th, 2010The Eleventh Circuit Court of Appeals recently handed down a decision, Polycarpe v. E&S Landscaping Services, Inc., which rejected the argument by several employers that they were not a covered by the Fair Labor Standards Act (FLSA) as an enterprise because their business were local in nature. The businesses at issue performed landscaping, construction work, alarm system installation, or shutter installation. The Polycarpe decision reversed a number of trial courts that had erroneously restricted FLSA coverage. It essentially put the Eleventh Circuit in line with all the other federal circuits that have squarely addressed the enterprise coverage issue, including the Third, Fourth Ninth, and Tenth Circuits (e.g., Marshall v. Brunner; Dole v. Odd Fellows Home Endowment Board; Brock v. Hamad; Donovan v. Scoles; and, Donovan v. Pointon). It also put the Eleventh Circuit in line with its prior interpretations of enterprise coverage; namely, Dunlop v. Indus. Am. Corp., which had noted that the FLSA reached retail and service establishments that were otherwise local in nature; and, and Green v. Propane Gas Serv. Inc., which held that the FLSA was “designed to regulate enterprises dealing in articles acquired intrastate after travel in interstate commerce.”
The Polycarpe decision corrected the decisions of some trial courts in Florida which had erroneously held that a business was not covered by the FLSA if it made its purchases locally and served only local customers. These trial courts failed to look at whether the articles used in the particular business had been manufactured out-of-state. These trial courts had applied the “come to rest doctrine” which the Polycarpe court determined was at odds with the statutory text of the FLSA. Indeed, the Polycarpe court stated that the “plain language of the statute” compelled its conclusion.
The Polycarpe court also addressed the difference between “goods” and “materials” with respect to the application of the “ultimate consumer” defense. The “ultimate consumer” defense applies only to goods, but does not apply to materials. To determine whether items in a particular case constitute “materials” depends on (1) whether they are tools or other articles necessary for doing or making something, and (2) whether the items are being used commercially in the employer’s business.
The Polycarpe decision was a victory for employees’ rights to payment of minimum wages and overtime.
Immigrant Wage Theft
Saturday, July 25th, 2009
All covered employees, whether working legally or illegally, and regardless of his or her immigration status, are entitled to be paid the minimum wage and overtime. Wage theft from undocumented workers is common, especially in workplaces such as construction sites, nail salons, and restaurants that are largely staffed by immigrant workers.
The Fair Labor Standards Act prohibits employers from retaliating against their employees for asserting their right to their wages. Threats to turn over employees to U.S. Immigration and Customs Enforcement (ICE) because that employee has exercised his or her rights, or other forms of intimidation, will be considered retaliation in violation of the Fair Labor Standards Act’s anti-retaliation provisions. Moreover, according to ICE’s Special Agents Field Manual, immigration officials must consider whether the information is being provided to interfere with or retaliate against employees seeking to assert their workplace rights. If immigration authorities determine that information has been provided to interfere with the employee’s rights or to retaliate against the employee for exercising his rights, immigration authorities are not suppose to take action without review of District Counsel and approval by the Assistant Director for Investigations or an Assistant Chief Patrol.