60974 Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 

1Typically, employers subject to FLSA regulatory 

changes have 30 or 60 days to adjust before a 

rulemaking becomes effective. See 5 U.S.C. 553(d), 

801(a)(3)(A). Prior to the Home Care Final Rule, the 

longest effective date delay for a Wage and Hour 

Division rule was 120 days. See 78 FR 60495 (citing 

69 FR 22126 (Apr. 23, 2004)). 

2,452-foot elevation point in section 26, 

T17N/R13W; then 

(25) Proceed southeasterly in a 

straight line approximately 0.4 mile to 

the intersection of the 1,800-foot 

contour line with Bakers Creek within 

McGee Canyon, section 26, T17N/

R13W; then 

(26) Proceed southeasterly 

(downstream) approximately 0.2 mile 

along Bakers Creek, returning to the 

beginning point. 

Signed: August 25, 2014. 

John J. Manfreda, 

Administrator. 

Approved: August 29, 2014. 

Timothy E. Skud, 

Deputy Assistant Secretary (Tax, Trade, and 

Tariff Policy). 

[FR Doc. 2014–24177 Filed 10–8–14; 8:45 am] 

BILLING CODE 4110–31–P 

DEPARTMENT OF LABOR 

Wage and Hour Division 

29 CFR Part 552 

RIN 1235–AA05 

Application of the Fair Labor 

Standards Act to Domestic Service; 

Announcement of Time-Limited NonEnforcement Policy 

AGENCY: Wage and Hour Division, 

Department of Labor. 

ACTION: Policy statement. 

SUMMARY: The Department of Labor’s 

(Department) October 1, 2013, Final 

Rule amending regulations regarding 

domestic service employment, which 

extends Fair Labor Standards Act 

(FLSA) protections to most home care 

workers will become effective on 

January 1, 2015. The Department is not 

changing this effective date. This 

document announces a time-limited 

non-enforcement policy. For six 

months, from January 1, 2015 to June 

30, 2015, the Department will not bring 

enforcement actions against any 

employer as to violations of FLSA 

obligations resulting from the amended 

regulations. For the following six 

months, from July 1, 2015 to December 

31, 2015, the Department will exercise 

prosecutorial discretion in determining 

whether to bring enforcement actions, 

with particular consideration given to 

the extent to which States and other 

entities have made good faith efforts to 

bring their home care programs into 

compliance with the FLSA since 

promulgation of the Final Rule. 

Throughout the 12-month duration of 

this policy, the Department will 

continue extensive outreach and 

technical assistance efforts, in particular 

with States regarding publicly funded 

home care programs. 

DATES: Enforcement of the final rule 

published October 1, 2013, at 78 FR 

60454: From January 1, 2015, to June 30, 

2015, the Department will not bring 

enforcement actions against any 

employer as to violations of FLSA 

obligations resulting from the amended 

regulations; from July 1, 2015, to 

December 31, 2015, the Department will 

exercise prosecutorial discretion in 

determining whether to bring 

enforcement actions. 

FOR FURTHER INFORMATION CONTACT: 

Michael Hancock, Assistant 

Administrator, Office of Policy, U.S. 

Department of Labor, Wage and Hour 

Division, 200 Constitution Avenue NW., 

Room S–3502, FP Building, 

Washington, DC 20210; telephone: (202) 

343–5940 (this is not a toll-free 

number), email: HomeCare@dol.gov. 

Copies of this document may be 

obtained in alternative formats (Large 

Print, Braille, Audio Tape, or Disc), 

upon request, by calling (202) 693–0675 

(not a toll-free number). TTY/TTD 

callers may dial toll-free (877) 889–5627 

to obtain information or request 

materials in alternative formats. 

SUPPLEMENTARY INFORMATION: 

I. Non-Enforcement Policy 

On October 1, 2013, the Wage and 

Hour Division of the Department of 

Labor (Department) issued Application 

of the Fair Labor Standards Act to 

Domestic Service; Final Rule, 78 FR 

60454 (Home Care Final Rule or Final 

Rule). The Final Rule amended the 

domestic service employment 

regulations under the Fair Labor 

Standards Act (FLSA or Act), 29 U.S.C. 

201 et seq., which are contained in 29 

CFR Part 552. Among other changes, the 

Final Rule (1) modified the definition of 

‘‘companionship services’’ and (2) 

prohibited third party employers (i.e., 

employers of domestic service 

employees other than the individuals 

receiving services or the individuals’ 

families or households) from claiming 

either the companionship services 

exemption from the FLSA’s minimum 

wage and overtime compensation 

requirements or the live-in domestic 

service employee exemption from the 

FLSA’s overtime compensation 

requirement. See 78 FR 60463–73, 

60480–83, 60557 (relevant regulatory 

changes to be codified at 29 CFR 552.6, 

552.109). 

The Department explained in the 

preamble to the Final Rule that the 

changes to the domestic service 

employment regulations should go into 

effect as soon as practicable because 

they were intended to serve the 

important purpose of extending basic 

labor standards to home care workers, 

which in turn helps ensure that 

individuals and their families can rely 

on a professional, trained workforce to 

provide high-quality services. 78 FR 

60455, 60495. The Department also 

acknowledged, however, that complex 

Federal and State systems fund a 

significant portion of the home care 

services provided across the country, 

and making adjustments to operations, 

programs, and budgets in order to 

comply with the FLSA could take time. 

Id. at 60494–95. Therefore, in response 

to comments received in the course of 

the rulemaking process, the Department 

set an effective date of January 1, 2015, 

an unprecedented 15 months after the 

publication of the Final Rule. Id.1

Since promulgating the Final Rule, 

the Department has conducted extensive 

technical assistance for the regulated 

community. Specifically, the 

Department has directly reached 

thousands of people through over 100 

webinars, conference calls, meetings, 

and presentations, engaging 

representatives from State governments, 

associations of State Medicaid and other 

relevant agencies, consumers, disability 

and senior citizens’ advocates, veterans’ 

organizations, worker representatives, 

and industry groups, among others. 

Furthermore, to help stakeholders learn 

more about the changes associated with 

the Final Rule, the Department created 

a home care Web page, which contains 

links to fact sheets, FAQs, webinar 

recordings, interactive web tools, and 

other materials, including two 

Administrator’s Interpretations issued 

this year in response to stakeholder 

questions regarding the application of 

the FLSA to shared living arrangements 

and joint employment of home care 

workers by public entities in consumerdirected programs. See www.dol.gov/

whd/homecare. Moreover, the 

Department has engaged in targeted 

outreach to the governments of all 50 

States. Through this outreach, the 

Department has provided extensive 

technical assistance to States as they 

implement the Home Care Final Rule in 

publicly funded programs in an effort to 

encourage implementation of the Final 

Rule in a manner that expands wage 

protections for most home care workers 


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Federal Register / Vol. 79, No. 196 / Thursday, October 9, 2014 / Rules and Regulations 60975 

2This non-enforcement policy does not apply to 

FLSA violations unaffected by the Final Rule, such 

as those involving home care services provided by 

registered nurses and licensed practical nurses. See 

current 29 CFR 552.6 (providing that the 

companionship services exemption does not apply 

to services that ‘‘require and are performed by 

trained personnel, such as a registered or practical 

nurse’’); 78 FR 60469 (explaining this existing 

regulatory provision). Similarly, services provided 

in nursing homes, group homes, or other 

institutions in which the workers are not domestic 

service employees fall outside the scope of the Final 

Rule and therefore violations in those settings are 

not subject to the position described here. See 29 

CFR 552.3 (defining ‘‘domestic service 

employment’’ as ‘‘services of a household nature 

performed by an employee in or about a private 

home (permanent or temporary)’’); 78 FR 60461–43 

(describing the meaning of the term ‘‘private 

home’’). 

and ensures that Medicaid participants 

and their families continue to have 

access to the critical home and 

community-based services upon which 

they rely, particularly services delivered 

through innovative models of care. 

Nevertheless, the Department has 

received requests to extend the effective 

date of the Home Care Final Rule, 

including from the National Association 

of Medicaid Directors (NAMD), the 

National Association of Directors of 

Developmental Disabilities Services 

(NASDDDS), the National Association of 

States United for Aging and Disabilities 

(NASUAD), organizations representing 

disability advocates, and the State of 

Kansas. The State of Oregon requested 

an extension of the effective date, or in 

the alternative a non-enforcement policy 

or waivers for certain States. The States 

of Maryland and Pennsylvania also 

requested an extension. These entities 

expressed the need for States to have 

more 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 has also received requests 

to implement the Final Rule on January 

1, 2015, as announced at the time of 

publication, including from Caring 

Across Generations, Direct Care 

Alliance, the National Domestic 

Workers Alliance, National Employment 

Law Project, Paraprofessional 

Healthcare Institute (PHI), the National 

Consumer Voice for Quality Long-Term 

Care, the American Geriatrics Society, 

and other organizations of worker 

advocates. These entities wish to see the 

nearly two million home care workers 

in the United States be guaranteed the 

basic minimum wage and overtime 

protections of the FLSA without delay. 

The Department has carefully 

considered these requests and is not 

extending the Final Rule’s effective 

date. When the Final Rule becomes 

effective, the regulated community will 

have had 15 months to make any 

adjustments necessary to fulfill new 

FLSA obligations. Many employers, 

including States, are poised to pay home 

care workers in compliance with the 

FLSA’s fundamental protections on 

January 1, 2015. For these reasons, the 

Final Rule’s effective date will remain 

January 1, 2015. 

The Department recognizes, however, 

that the implementation of the Final 

Rule raises sensitive issues. In 

particular, the Department has been 

committed to assisting the regulated 

community in considering methods of 

complying with the FLSA in a manner 

that avoids harmful impacts on the 

individuals who rely on home care. 

Additionally, the Department has 

historically provided compliance 

assistance prior to the enforcement of 

new regulations, and it will continue to 

focus on such assistance during the 

initial stages of implementing the Home 

Care Final Rule. Given the unique 

effects of this rule, the Department has 

been committed to providing extensive 

compliance assistance, reaching out to 

all 50 states individually and providing 

other varied technical assistance to 

States and other stakeholders. 

Therefore, the Department is 

announcing that between January 1, 

2015 and June 30, 2015, it will not bring 

enforcement actions against any 

employer as to violations of FLSA 

obligations resulting from the Final 

Rule. See 29 U.S.C. 216(c) (giving 

authority to the Department to bring 

enforcement actions, including 

investigating potential violations of the 

FLSA, supervising settlements for 

unpaid wages owed under the Act, or 

filing suit in Federal court to recover 

such wages); see also Secretary’s Order 

No. 05–2010 (delegating this authority 

to the Administrator of the Wage and 

Hour Division). This initial nonenforcement policy will apply to all 

employers. During this six-month 

period, the Department will concentrate 

its resources on continuing to provide 

intensive technical assistance to the 

regulated community, in particular State 

agencies administering home care 

programs, regarding the Final Rule and 

the application of the FLSA to home 

care arrangements. Although the 

Department will not conduct formal 

investigations of potential FLSA 

violations during this time, any 

information received during this time 

period suggesting non-compliance with 

FLSA requirements will be used as an 

opportunity to provide additional 

technical assistance to States and other 

potential employers in order to facilitate 

efficient and effective implementation 

of the Final Rule.2

After July 1, 2015, the Department 

will commence enforcement actions for 

FLSA violations resulting from the 

Home Care Final Rule. From July 1, 

2015 until December 31, 2015, however, 

the Department will exercise its 

prosecutorial discretion in a manner 

that is consistent with this document 

when making determinations on a caseby-case basis as to whether to bring 

enforcement actions in the home care 

context. During this six-month period, 

the Department will give strong 

consideration to an employer’s efforts to 

make any adjustments necessary to 

implement the Final Rule, and in 

particular a State’s efforts to bring its 

publicly funded home care programs 

into FLSA compliance, in determining 

how best to use its prosecutorial 

discretion in this area. The Department 

will, as always, consider a variety of 

other factors in making enforcement 

decisions, including the Department’s 

limited resources, the extent of the 

violations at issue, and the impact of a 

particular enforcement action on 

compliance more broadly. The 

Department’s intensive outreach and 

technical assistance efforts will 

continue throughout this period. 

II. Regulatory Requirements 

This document is non-binding 

guidance articulating considerations 

relevant to the Department’s exercise of 

its enforcement authority under the 

FLSA. It is therefore exempt from the 

notice-and-comment rulemaking 

requirements under the Administrative 

Procedure Act pursuant to 5 U.S.C. 

553(b). 

Because no notice of proposed 

rulemaking is required, the Regulatory 

Flexibility Act does not require an 

initial or final regulatory flexibility 

analysis. 5 U.S.C. 603(a), 604(a). The 

Department has determined that this 

guidance does not impose any new or 

revise any existing recordkeeping, 

reporting, or disclosure requirements on 

covered entities or members of the 

public that would be collections of 

information requiring OMB approval 

under the Paperwork Reduction Act, 44 

U.S.C. 3501 et seq. 

Authority: 29 U.S.C. 216(c); Secretary’s 

Order No. 05–2010. 

Dated: October 6, 2014. 

David Weil, 

Administrator, Wage and Hour Division. 

[FR Doc. 2014–24144 Filed 10–7–14; 4:15 pm] 

BILLING CODE 4510–27–P 


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