Wednesday, October 8, 2014

Labor oversteps people with disabilities

Disability Rights Advocates Criticize DOL Announcement of Non-enforcement Policy for FLSA Changes

ADAPT meets Sec. of Labor, Tom Perez in the street
ADAPT meets Sec. of Labor, Tom Perez in the street
Today, the US Department of Labor (DOL) responded to concerns being raised by the Disability Community that changes to the Fair Labor Standards Act (FLSA) companionship exemption will have serious unintended consequences on people with disabilities and attendants.  Rather than implement a solution that prevents the detrimental impact of these changes, DOL has chosen an incomplete and inadequate solution.

The basic problem with the FLSA changes is that without funding in place to pay for them, states and provider agencies will simply cap the hours attendants can work to avoid any overtime costs and liability.  This will undercut the ability of people with disabilities and seniors to live in the community, undermine the ability of seniors and people with disabilities to decide who comes into our homes, and hurt attendants by reducing their income.

To avoid these unintended consequences, disability rights advocates asked DOL to delay the implementation of these rule changes by 18 months to give time to secure state funding to pay for the new requirements.  Rather than delay implementation, DOL published a non-enforcement policy.  Specifically DOL announced that it will not enforce the companionship changes until June 30, 2015.  In the six months following June 30th, DOL will have  prosecutorial discretion  to delay enforcement against states and other providers on a case by case basis. During this period DOL will be providing  extensive  outreach and technical assistance on the companionship changes.

Stephanie Woodward of ADAPT in Little Rock
Stephanie Woodward of ADAPT in Little Rock
“This is an inadequate and incomplete solution. Agreeing not to enforce a law is not the same as delaying the implementation of a law,” said Stephanie Woodward who is a disability rights attorney and ADAPT activist in Rochester, NY.  “The law is still in effect; although the Department of Labor has said that it won't enforce the law, nothing prevents individuals from suing to enforce it.”

Disability rights advocates are concerned that providers worried about liability will cap hours that attendants can work.  Although DOL has told disability rights advocates the risk of litigation is minimal, providers won't risk legal action or being put out of business.  This means people with significant disabilities will lose long-time attendants and may be forced into nursing facilities or other institutions.

“During the second non-enforcement phase, DOL will handle situations on a case by case basis.   Basically, this gives DOL complete discretion in its enforcement and they can arbitrarily prosecute providers and states while letting others slide by,” said Woodward. “No responsible provider would take that risk.”

In conversations with advocates, DOL acknowledged the solution was imperfect. Disability rights advocates are angry because DOL rejected a straight-forward solution that would prevent unwanted institutionalization and hardship on attendants the very people these changes were intended to help.

Shelly Perrin with ADAPT
Shelly Perrin with ADAPT
“By taking this action, DOL has acknowledged my worst fears, but done virtually nothing to prevent them from happening,”  said Shelly Perrin an ADAPT activist who has been fighting these changes.  “My attendant will still lose nearly one-third of her income and my freedom hangs in the balance.  It’s clear the Department of Labor doesn’t care about how their policies affect real people.”

ADAPT is a national grassroots community that organizes disability rights activists to engage in nonviolent direct action, including civil disobedience, to assure the civil and human rights of people with disabilities to live in freedom.