No Labor Day Good News for Home Care Workers

I had high hopes that the Obama administration would actually do something for workers on Labor Day. And I had something specific in mind — an announcement that it had, at long last, issued a final rule granting federal wage and overtime rights to home care workers.

The title above shows I was disappointed — and I’m far from alone.

I first wrote about the home care worker issue more than two years ago. So a brief review to begin with and then developments to date.

Home Care Worker Exemption

The rule that’s now way overdue would correct an over-broad exemption in the rules that define wage requirements under the Fair Labor Standards Act.

Nearly 40 years ago, Congress broadened the FLSA to include domestic workers, who’d been excluded, along with agricultural workers, from the original law.

But it made in exemption for workers who provide “companionship services for individuals who (because of age or infirmity) are unable to care for themselves.”

The Department of Labor interpreted this carve-out more broadly than Congress apparently intended, as the legislative history in the National Employment Law Project’s brief on the issue indicates.

This is one, though not the only reason that workers who provide in-home paraprofessional health care services and those who assist with homemaking and personal tasks earn so little.

Though their median hourly wage is somewhat higher than the federal minimum, their median annual wage is just $20,170 — slightly over the federal poverty line for a family of three.

Half of the workers make less, of course. And even the median suggests that many employers don’t pay overtime, though a goodly number of home care workers report putting in more than eight-hour days.

They already comprise a significant sector of our labor force, and it’s expected to grow more rapidly than any other through at least 2020.

By then, we’ll have an estimated 3.2 million workers who won’t have any federal wage protections unless the rule is changed.

Halting Progress Toward a Remedy

Back in December 2011, the Department of Labor issued a proposed rule to give home care workers the same wage and overtime protections as the vast majority of hourly workers already have.

Interested parties originally had two months to comment, but the department twice extended the comment period, leaving the window open until March 21, 2012.

A veritable flood of comments — reportedly 9,000.* And federal law obliged DOL to respond to all comments that raised significant issues, explaining how it had accommodated them or why it hadn’t.

This doesn’t mean it had to respond to each comment individually, but it does help explain why DOL didn’t get its draft final rule finished until January of this year.

The draft rule then went over to the Office of Information and Regulatory Affairs, which is notoriously slow, when it acts at all. Health and worker safety advocates commonly refer to it as “the place where regulations go to die.”

So far as we know, the home care rule is still sitting in OIRA. If the office had adhered to the established review timeframe, the rule would have been published — or sent back to DOL — by mid-April.

Hard on this deadline, however, the National Association of Medicaid Directors called for “a more rigorous review” of what it refers to as “a complicated and burdensome rule.”

“Review,” as the letter makes clear, is a euphemism for “send the rule back to the drawing board” because DOL didn’t revise the proposal as we recommended.

DOL nevertheless scheduled publication of the rule for some time in July.

And, in mid-July, the Senate confirmed the President’s appointment of Thomas Perez as the new Secretary of Labor. This seemed a hopeful sign, since he had championed a domestic workers bill of rights when he was a county council member.

More recently, Ai-Jen Poo, the founder and now director of the National Domestic Workers Alliance, told The Nation, that “it could be a matter of days or weeks until … [the rule] get finalized,” as she and her co-advocates understood the state of play.

Look, she said, not only at the Perez appointment, but at comments Vice President Biden made on the 75th anniversary of the FLSA. (He seemed to be speaking for the administration, though that’s not always been the case.)

So, I thought to myself, how better to recognize Labor Day than to announce the final home care workers rule?

But it seems the rule may still be among those The New York Times editorial board cited as “stuck in the purgatory of OIRA” because it’s politically controversial — and opposed by some influential folks.

Heaven knows the White House has more than enough controversy on its plate. But apparently a lot of those home care workers don’t have enough on their plates without food stamps.

* Some advocacy organizations report 26,000 comments. This, if I understand correctly, is the number of signatures on comments filed.

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