Under the Federal Labor Standards Act (FLSA), companion workers, employees who provide live-in care for senior citizens, were ineligible for overtime and minimum wage through an exemption in the law. The Second Circuit in the New York case of Coke v. Long Island Care at Home, Ltd., 376 F.3d 118 (2d Cir. 2004)(“Coke I”), held that companion workers hired through third-party agencies were not exempt. Thus agencies providing companion workers would be required to pay minimum wage and overtime to its employees. To date, the Coke ruling is the first and only federal appellate court to rule that such exemption is unavailable to homecare agencies.
The defendants in Coke asked the U.S. Supreme Court to review the 2nd Circuit’s decision. On Jan. 23, 2006, the high court in an interesting procedural development, vacated the judgment and remanded the case back to the 2nd Circuit for further consideration in light of a U.S. Department of Labor’s Wage and Hour Advisory Memorandum No. 2005-1 (Dec. 1, 2005).
Despite the Supreme Court’s remand and the existence of the DOL memorandum, on Aug. 31, 2006, the 2nd Circuit issued an opinion in which it adhered to its original decision invalidating the regulation in question. Coke v. Long Island Care at Home, Ltd., 462 F.3d 48 (2nd Cir. 2006)(“Coke II”).
The Supreme Court on Jan. 5, 2007, decided to hear the case.
In all likelihood this case will follow the Department of Labor’s memorandum holding that home health care agencies are eligible for the FLSA exemption. Thus in all probability New York companion workers will continue to be denied overtime and minimum wage pay.