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LETTER: FLSA Rule Implementation Must Not Violate Disability Rights

December 23, 2014

States must take care not to violate the rights of people with disabilities as they implement a rule change to the Fair Labor Standards Act (FLSA) guaranteeing minimum wage and overtime protections for home care workers, officials from two federal civil-rights departments say.

Vanita Gupta of the Justice Department‘s Civil Rights Division and Jocelyn Samuels of the Department of Health and Human ServicesOffice for Civil Rights (OCR) addressed the issue in a December 15 letter (pdf).

The FLSA rule change officially takes effect January 1, but the U.S. Department of Labor (DOL) will not begin to enforce it until June 2015.

In the letter, Gupta and Samuels write that states have a responsibility to implement the FLSA rule change while still respecting the right of people with disabilities to live the most integrated lives possible in their own communities.

Both the Americans with Disabilities Act (ADA) and the Supreme Court’s 1999 Olmstead decision explicitly enforce that right, Gupta and Samuels point out.

“The Civil Rights Division and OCR encourage states to conduct a thorough analysis of all their home care programs to determine whether any changes must be made to comply with the FLSA once the Home Care Rule becomes effective,” the letter says.

Some changes, however, run the risk of violating the rights of people with disabilities, Gupta and Samuels caution.

Some states have proposed capping home care workers’ hours to prevent paying the time-and-a-half overtime rate. But those states may be violating the ADA “if the caps do not account for the needs of individuals with disabilities and consequently places them at serious risk of institutionalization or segregation,” the letter says.

Although a December 22 federal court ruling vacated one aspect of the DOL rule, DOL is advising all employers of home care workers that, as of January 1, they are obligated to consider the duties such workers perform in evaluating whether they must pay wages in compliance with the minimum wage and overtime requirements.

The PHI Campaign for Fair Pay home page includes a toolkit (pdf) to help states fully and fairly implement the FLSA rule change.

— by Matthew Ozga

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