Should operators comply with rules that might never happen?
"Should I stay or should I go now?
If I go there will be trouble,
And if I stay it will be double."
Mick Jones allegedly wrote “Should I stay or should I go” in 1981 while contemplating whether to leave The Clash. The context may be different this time, but many long-term care operators can well relate to the song's sentiment.
This time, however, the choice is not about musical allegiance. Rather, it relates to whether facilities should comply with temporarily-shelved overtime rules.
The Department of Labor's updated overtime regulation was supposed to take effect in December. It would have instantly made most skilled care employees eligible to earn more pay for work exceeding 40 hours a week. Currently, salaried exempt workers who earn $23,660 or more a year (or $455 per week) do not automatically qualify for additional pay. The regulation would have doubled the yearly threshold to $47,476.
Most facilities have spent grueling months adjusting schedules, duties and even salaries in order to prepare. But a federal judge's temporary injunction has put the rule's legality — and future — in doubt.
Judge Amos L. Mazzant III ruled that the Obama administration overstepped its bounds by increasing overtime limits so dramatically. Long-term care industry lobbyists quickly hailed the Nov. 22 decision. They added that the new rules would have required higher outlays for operators, and meant fewer hours of work for many front line employees.
The Labor Department responded predictably, by filing an appeal.
“The Department's Overtime Final Rule is the result of a comprehensive, inclusive rule-making process, and we remain confident in the legality of all aspects of the rule,” the department said in a release.
At this point, it's unclear how hard the department wants to push that confidence. After all, a new president from a different party is scheduled to be sworn in on Jan. 20. And he has been anything but a fan of the effort. Plus, he'll have this little tool at his disposal called an executive order, which just might be used to make the proposed salary adjustment a moot point.
The current conventional wisdom is that a higher pay threshold may remain, but it probably won't be anywhere near $50,000. Then again, recent conventional wisdom held that Donald Trump would finish second in the presidential election.
So we'll see what happens. For now, the best advice is probably this: Try not to do anything you'll regret later.