DOL Enforcement Delay doesn’t Help People with Disabilities

DOL announced that it won’t enforce the changes to the Fair Labor Standards Act as a way to address the concerns of the Disability Community. Although delaying enforcement may sound like delaying the effective date, the two things are very different, and the DOL announcement that it will delay enforcing the new FLSA companionship rule changes is a hollow, worthless and insulting solution. To explain why, here is a simple analogy…

Just because your friend – who is a cop – says he won’t give you a ticket for speeding, doesn’t mean EVERY cop is willing to give you a free pass to speed. Similarly, just because DOL says they won’t enforce the law, doesn’t mean no one will.

DOL understands that there is still a private right of action and those who don’t pay time and a half can be sued and forced to pay by the courts.

Don’t take my word for it… according to Seth Harris who preceded Tom Perez as Labor Secretary:

“The reason to distinguish between a delayed effective date and a non-enforcement policy is this: the Fair Labor Standards Act allows workers to enforce the law for themselves. They do not need the Wage & Hour Administration. The law permits what lawyers call a ‘private right of action’ meaning lawsuits brought by private parties without the involvement of the government. So, when wage and hour law changes on January 1 to include home health workers, these workers will be able to file their own lawsuits against their employers to collect unpaid wages and overtime… the real question raised by the Labor Department’s announcement yesterday is, will worker advocates and plaintiff’s lawyers step in to enforce the Fair Labor Standards Act in 2015 when the Labor Department won’t?”

You can read his full text at this link: Understanding the Labor Department’s Decision on Home Care Workers

DOL knows that the vast majority of states haven’t figured out how to pay for the changes. In fact, some states with two-year budget cycles – like Texas – won’t even start their budget process until after the effective date. Even states with annual budget cycles had virtually all finished their annual budget process when DOL issued the guidance on the rule’s impact on consumer directed services.

Sadly, what ADAPT, the National Council on Independent Living and other disability-led organizations predicted is now happening. People with disabilities are getting notices that their attendants’ hours will be capped. Consequently, attendant service users are having to cut the hours of long-term attendants and these trusted workers are facing an uncertain future as they deal with lost wages.

Here’s a notice that my friend and ADAPTer Susan Stahl received from her fiscal intermediary. Read it for yourself.

maxim_letter_capping_hours.pdf

june_9.pdf

Susan testified yesterday to New York State that she has had the same attendant for 15 years who provides about 70 hours of assistance each week. By not delaying these rules, she is going to need to find another worker and cut her worker’s income by over 40 percent. Let’s put that cut into dollars. Based on $11 per hour, that means the attendant will lose $17,000 a year! When she pushed state representatives to explain how they were going to fix this, they could only thank her for sharing her story because – with about ten weeks until the deadline – they don’t have a plan in New York.

This shows how the thoughtless implementation of these rules by the Obama Administration and DOL Secretary Tom Perez is hurting the very people they were supposed to help. Seth Harris has urged workers to step in and sue to enforce the FLSA changes, knowing that this will undercut the freedom and body integrity of people with disabilities. Disability rights advocates need to step up to defend the freedom of people with significant disabilities and the paychecks of the attendants who make that the promise of freedom a reality.