Case Updates
May 11, 2023
Los Angeles County Department of Public Social Services Update
In November 2022, we received a decision from the Ninth Circuit regarding
the appeal that we argued before them in November 2021. The Ninth Circuit
ruled that the County is an employer of the IHSS homecare providers, thus
reversing the District Court’s ruling that the County was not liable
as an employer of IHSS providers. The Ninth Circuit also ruled that the
County did not act “willfully” when it did not pay overtime
prior to February 1, 2016. That portion of the ruling means that the overtime
claims only have a 2-year statutory period – if the violation were
treated as willful, then a three-year period would apply. As a result
of this change in the statutory period, several opt-ins lost their claims.
Both parties asked for a rehearing in front of a larger group of judges
from the Ninth Circuit (as opposed to just the 3-judge panel that produced
this ruling), but the Ninth Circuit informed us and the County that they
will not rehear the case. As such, the County also asked the Supreme Court
of the United States to rehear the joint-employer issue. We will know
in the coming weeks whether the Supreme Court decides to take this case.
Finally, the trial judge originally scheduled the trial to begin on May
2, 2023 but has recently rescheduled it to begin on September 5, 2023.
Assuming that the Supreme Court does not decide to hear this case, we
do not expect another continuance of the trial date.
August 25, 2022
Los Angeles County Department of Public Social Services Update
We are still waiting to hear from the Ninth Circuit regarding their decision
on the appeal. We will send an update out to our clients when we hear
back and appreciate your patience as we wait. In the meantime, if you
need to update your contact information please reach out to
ihss@nka.com. Thank you.
December 8, 2021
Los Angeles County Department of Public Social Services Update
On November 18, 2021, we argued our appeal of the district court’s
summary judgment order to the Ninth Circuit. We are expecting a decision
in the coming months. You can view a recording of the hearing
here. Please continue to keep your contact information up to date. If you need
to update your information, please reach out to
ihss@nka.com or 612-255-3360.
September 14, 2021
Los Angeles County Department of Public Social Services Update
We have received a hearing date for our appeal before the Ninth Circuit.
The hearing has been scheduled for November 18, 2021 at 9:00 a.m.. You
may visit the
Ninth Circuit’s website for information about how to watch a livestream of the oral argument.
As always, please contact us at
ihss@nka.com or 612-255-3360 if you have any questions and/or your contact info has
changed recently. Thank you.
December 10, 2020
Los Angeles County Department of Public Social Services Update
On October 27, 2020, the Judge ruled in favor of the Defendant on summary
judgment about whether the County was an employer of the providers. Summary
judgment is a pre-trial decision based on the undisputed facts of a case.
In this ruling, the Judge ruled that the county is not an employer for
IHSS providers. We argued that the County should be held liable as a joint
employer of providers, but the Court decided that under the current structure
of the program the County’s role is too limited. Because of this
ruling we will no longer be going to trail in December.
We are disappointed this ruling was not in our favor, and have filed an
appeal of this decision to the Ninth Circuit. This does mean, however,
that the timeline of the case will be extended. We cannot say exactly
how long the case will continue, but generally appeals take about 2 years.
In addition to challenging the judge’s ruling on employer status,
we will also be appealing decisions from the trial court that held that
the County could assert a good faith defense, and that the County did
not willfully violate the Fair Labor Standards Act. How the Ninth Circuit
rules on these issues will impact whether we can recover liquidated damages,
and what statute of limitations applies to the case.
August 23, 2019
Ninth Circuit Rules that Los Angeles County is not Immune from Suit for
Failure to Pay Overtime to Tens of Thousands of Homecare Workers
On August 22, 2019, the United States Court of Appeals for the Ninth Circuit
issued a two-part ruling in favor of In-Home Supportive Services homecare
workers represented by Nichols Kaster, PLLP and Bohrer Brady, LLC. The
workers seek unpaid overtime from the County of Los Angeles for a 13-month
period when their pay did not comply with new federal regulations requiring
overtime pay for homecare workers.
The County of Los Angeles argued that it could not be sued for violating
federal law because it was acting as an “arm of the state.”
The Ninth Circuit rejected that argument, recognizing that counties are
distinct from states for purposes of Constitutional immunity, and that
the workers were seeking to hold Los Angeles responsible as their employer,
not the State of California.
The Court also agreed with Plaintiffs that the federal regulations in question
were effective January 1, 2015 not November 2015 as the County had argued.
Although the federal regulations were challenged in court shortly before
they went into effect, that challenge was ultimately unsuccessful. The
Court held that the unsuccessful challenge did not postpone the effective
date, even though the legal challenge was resolved after the effective
date had passed. The Court recognized that it would be unfair to deny
workers a year of wages because an employer gambled on the outcome of
a legal challenge to a federal regulation.
The oral argument is available
here and the
opinion is available here.
March 12, 2019
Los Angeles County Department of Public Social Services Update
On March 7, 2019, the United States Court of Appeals for the Ninth Circuit
heard cross appeals in this case. The County appealed the district court’s
order that it was not immune from suit, and we appealed the District Court’s
order finding that the effective date of the applicable Department of
Labor regulations was November 15, 2015 instead of January 1, 2015. We
hope the Ninth Circuit will issue a ruling on these appeals in the coming
months. You can watch the oral argument
here.
January 17, 2018
Los Angeles County Department of Public Social Services –Unpaid Overtime
Lawsuit - Update January 17, 2018
Los Angeles County filed a motion to dismiss our case. In response to that
motion, the Court ruled that the County was not required to follow the
new overtime regulations until November 12, 2015, instead of January 1,
2015 as we had argued. However, the Court denied the County’s argument
that it could not be sued for overtime violations because it was acting
as an arm of the state. The County is appealing this ruling. We have filed
a request for permission to appeal the court’s ruling regarding
the effective date of the overtime regulations.
The appeals process takes time, so in the meantime if there are any questions
or any changes to contact information, please feel free to contact our
case clerk at
ihss@nka.com or call at (612) 255-3360.
June 8, 2017
IHSS Homecare Provider Files Overtime Lawsuit Against California Department
of Social Services and Los Angeles County Department of Public Social Services
An employee of the California Department of Social Services (CDSS) and
the Los Angeles County Department of Public Social Services (DPSS) ("Defendants")
filed a lawsuit on June 7, 2017 in the United States District Court for
the Central District of California, alleging violations of federal overtime
law. The named plaintiff, an hourly homecare worker, brings her claims
individually and on behalf of similarly situated employees who were employed
by Defendants as homecare workers, homecare providers, or in similar job
titles through California's In-Home Supportive Services program who were
paid for hours in excess of forty (40) per week at a rate of less than
1.5 times their regular rate.
The Complaint alleges that from January 1, 2015, when federal overtime
regulations were revised to provide overtime protections to homecare workers,
to February 1, 2016, when Defendants began paying appropriate overtime
wages, Defendants underpaid their homecare workers by paying them "straight
time" rates, rather than the required one and one-half (1.5) times
the employees' regular rate of pay, for their overtime hours. The case
is filed as a Fair Labor Standards Act collective action, and the named
plaintiff seeks unpaid overtime wages and double damages.
The In-Home Supportive Services ("IHSS") program provides in-home
assistance to eligible aged, blind, and disabled individuals as an alternative
to out-of-home care. IHSS currently serves over 550,000 recipients through
over 460,000 homecare workers (providers) in the state of California.
The California Department of Social Services is responsible for the oversight
of programs, including IHSS, which serve more than eight million people
across the state. The Los Angeles Department of Public Social Services
is the second largest department in Los Angeles County and is involved
in administration and oversight of the IHSS program at the county level.
Plaintiffs' attorney Matthew Helland of Nichols Kaster, LLP explained,
"IHSS Homecare Workers were eligible for overtime under federal law
in 2015, but the state and county agencies failed to pay it. These employees
worked long hours providing important services and are entitled to fair
and legal compensation."
Plaintiffs are represented by Matthew C. Helland and Daniel S. Brome from
Nichols Kaster, LLP, which has offices in Minneapolis, Minnesota and San
Francisco, California and Scott Brady and Phillip Bohrer of Bohrer Brady,
LLC in Baton Rouge, Louisiana.
The case is entitled Ray v. California Department of Social Services and
Los Angeles Department of Public Social Services, Case No. 2:17-cv-04239
(Central District of California). Additional information about how to
make a claim for overtime pay in the case may be found at www.nka.com
or by calling Nichols Kaster, PLLP toll free at
(877) 344-4628.
