OVERNIGHT REGULATION: Court hears appeal on home care provider rules

Welcome to OVERNIGHT REGULATION, your daily rundown of news from Capitol Hill and beyond. It's Thursday evening here in Washington, which means you have two more days to figure out the perfect gift for mom. That's right. Mother's Day is this Sunday. Don't forget.

Here's what else is happening.

 

THE BIG STORY

Two of the three judges on a powerful federal court appeared sympathetic to the Department of Labor's push to make home care providers of third-party employers eligible for minimum wage and overtime pay during oral arguments on Thursday.

At issue are workers who serve as aides for the elderly and disabled at home. While they are not providing healthcare, Judge Cornelia Pillard, of the D.C. Circuit Court of Appeals, suggested they should be treated as other professionals.

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"It was the intent of Congress to give wage and labor protections to people who were doing this as their bread and butter," she said referring to the Fair Labor Standards Act.

Under the Fair Labor Standard Act, third-party employers have been exempt from having to pay overtime if a domestic service employee is hired to provide companionship services to elderly and disabled individuals unable to care for themselves.

The Labor Department issued a rule, which changed the definition of "domestic service employment" and "companionship services," and said if employee is spending more than 20 percent of their day providing care -- preparing meals, helping patients get dressed or use the bathroom -- the employer would be disqualified from seeking the exemption.

The rule also limited companionship and live-in employee exemptions to workers employed by the family or household receiving the care.

Home Care Associates of America, the International Franchise Association (IFA) and the National Association for Home Care & Hospice sued the Labor Department, arguing that it overstepped its rule-making authority.

A federal district court threw out that agency rule, leading the Labor Department to launch an appeal.

The Labor Department argues that statute gives the agency the authority to define home care employees.

Attorney Maurice Baskin, representing the industry groups, said the department's rule contradicts that argument because it regulates employers instead of employees.

"But you can make an explicit link between employers and the employees who are hired by those employers," Judge Sri Srinivasan said.

Following the arguments, labor rights advocates were optimistic the court will reinstate the rule, which was originally set to take effect Jan. 1 this year.

"The reality is so many of these workers are doing this for a living as some of the discussion focused on in the arguments today," said Ariela Migdal, of the ACLU Women's Rights Project. "They aren't just stopping by to say 'Hi.'

"They are working really hard all day and they've been doing so without basic wage protections, and the reason for that was this long ago exclusion of women of color doing domestic work in other peoples' homes," she added.

Migdal said it's time to get rid of that exclusion. 

"We hope and believe the court will be open to that," she said.

Industry groups, however, argue the exemption is key to maintaining access to quality, affordable care for seniors.

"We could not agree more with the district court, which ruled that the regulations are 'yet another thinly-veiled effort to do through regulation what could not be done through legislation,'" International Franchise Association Executive Vice President of Government Relations & Public Policy Robert Cresanti said in a statement. http://bit.ly/1JSDjWY

 

ON TAP

The House and Senate are both in session next week.

The Commerce Department, the Economics and Statistics Administration, and the Bureau of Economic Analysis will hold a meeting Friday to discuss ways in which the national economic accounts can be presented more effectively as well as recent statistical developments in national accounting. 

 

TOMORROW'S REGS TODAY

The Obama administration will publish 201 new regulations, proposed rules, notices and other administrative actions in Friday's edition of the Federal Register.

Here's what to look for:

--The Department of Energy (DOE) will consider new energy conservation standards for dedicated-purpose pool pumps.

The Energy Department's Office of Energy Efficiency and Renewable Energy will issue a request for information and use the results as it considers whether and how to regulate.

The agency says it is trying to determine the "feasibility" of energy conservation standards and which testing methods it could implement.

The public has 45 days to comment. http://bit.ly/1IkaPVv

--The Department of Health and Human Services (HHS) will issue new rules allowing organs to be harvested from people who were infected with human immunodeficiency virus (HIV) before they died.

Those organs could only be implanted in other patients who are also infected with HIV and are participating in clinical research.

For decades, HHS has prohibited people with HIV from donating their organs when they die to prevent the disease from spreading.

The rule goes into effect in 30 days. http://bit.ly/1KPJJUk

--The National Aeronautics and Space Administration (NASA) will propose revisions to the drug and alcohol testing requirements for certain government contractor employees.

Employees of government contractors who operate in mission-critical positions would be subject to pre-employment, reasonable suspicion, random and post-accident drug and alcohol testing.

The drugs they test for would be expanded to include amphetamines, opiates and phencyclidine.

"The greatest efforts must be expended to eliminate the abuse of alcohol and use of illegal drugs," the agency writes.

The public has 60 days to comment. http://bit.ly/1cbQUu6

--The Department of Transportation (DOT) will issue new safety requirements for trains carrying flammable liquids like petroleum.

The Transportation Department's Pipeline and Hazardous Materials Safety Administration will regulate the speed, braking systems and routes traveled by these high-hazard flammable trains. 

The safety requirements will also include tank car design standards, the agency said.

"These operational and safety improvements are necessary to address the unique risks associated with the growing reliance on trains to transport large quantities of flammable liquids," the agency says.

The rules go into effect in 60 days. http://bit.ly/1P4gG5r

 

NEWS RIGHT NOW

Slavery? A progressive group is comparing President Obama's executive order protecting millions of illegal immigrants from deportation to President Lincoln's Emancipation Proclamation that freed slaves from the South. http://bit.ly/1FSdlR4

Dodd-Frank: By preventing the economy from slipping into another financial recession, the Dodd-Frank financial reforms will boost the economy by $2.9 trillion, according to a group of Wall Street reform advocates. http://bit.ly/1QqXiwR

Vegan diet: The Obama administration's dietary guidelines should discourage people from eating so much meat, a group of health and environmental advocates say. http://bit.ly/1H4fUBe

The courts: A federal appeals court is considering whether home care workers should be eligible for minimum wage and overtime pay. http://bit.ly/1csghso

Chemical safety: A growing number of lawmakers from both sides of the aisle are getting behind an effort to reform the nation's decades-old chemical safety laws. http://bit.ly/1AIAsaV

Proud to be American? A record number of Americans are renouncing their citizenship, according to the Internal Revenue Service. http://bit.ly/1H4u84T

Spying: A federal appeals court ruled that the National Security Agency (NSA) overstepped by spying on Americans' phone records. http://bit.ly/1KPNeu4

Another 9/11? Sen. John McCainJohn Sidney McCainPublisher announces McSally book planned for May release Democrats lead Trump by wide margins in Minnesota Here's what to watch this week on impeachment MORE says he's "very worried" by the court's ruling. "People seem to have forgotten 9/11," he said. http://bit.ly/1AIBDHh

 

BY THE NUMBERS 
26,000
: Comments the Labor Department received on its home care worker rule.
$2.9 trillion: Amount Americans for Financial Reform says Dodd-Frank will generate in economic benefits over the next decade.

 

QUOTE OF THE DAY

"People seem to have forgotten 9/11," -- Sen John McCain (R-Ariz.) on the federal court's ruling shielding Americans from the NSA's surveillance program.