No Labor Day Good News for Home Care Workers

September 5, 2013

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.


Proposed Wage Rights for Home Care Workers Triggers New Round of Debate

January 19, 2012

The U.S. Department of Labor has, at long last, moved to close an egregious loophole in its Fair Labor Standards Act rules — the exemption of home care workers from federal minimum wage and overtime pay requirements.

As I wrote some time ago, the exemption reflects an over-broad interpretation of a carve-out Congress made when it extended minimum wage and overtime rights to domestic workers.

That was nearly 37 years ago. So one could say the Labor Department has decided to rectify a long-standing error.

The department itself puts a somewhat different spin on its initiative. Says that home care workers today perform duties and in circumstances that weren’t envisioned when the current regulations were issued.

In any event, it’s issued a Notice of Proposed Rulemaking — the formal step all federal agencies must take before revising their regulations. Anyone who cares to may file comments on the proposed rule up to February 27.

And you’d better bet there will be comments. Here’s a preview of what I think we’ll see.

Support for the Rule Change

Proponents of the rule change will include organized labor and other nonprofits that advocate for low-wage workers, including home care workers specifically.

They’ll argue, as they have for some time, that home care workers deserve the proposed wage protections as “a matter of basic justice.”

They’ll note, as does the Labor Department, that home care is one of our country’s fastest growing industries. According to its projections, the number of home care aides will have nearly doubled by 2018 — from about 1.7 million to well over 2.5 million.

In short, we’ve got a large and growing group of skilled workers who are currently classified as occasional babysitters for adults.

This is bad for them — not least because it depresses their earnings to the point that some 46% live in households poor enough to qualify for public benefits like food stamps and Medicaid.

Also bad for all of us who want our loved ones — and ourselves, should the need arise — to be cared for professionally and, well, caringly.

Not surprising then to find AARP supporting the core thrust of the rule change on behalf of the older Americans it represents.

Objections to the Rule Change

We’re likely to see formal objections from some, though not all, home care agencies and the associations they belong to.

We’ve already heard from this quarter. And the concerns they raise go to the heart of the debate. It’s not the minimum wage requirement they’re so fussed about. It’s the overtime.

Home care workers already make, on average, $9.25 an hour — a very low wage for what they do, but not one that would be bumped up by coverage under the federal minimum wage rule.

But they’re entitled to overtime in only 16 states.

So for a great many, the wage stays flat, even if they spend far more than 40 hours a week actively tending to clients’ needs. And they often get no pay at all for the time they spend traveling from one client’s home to the next.

Some opponents of the rule change purport to have their interests at heart. Laurie Edwards-Tate, for example, warns that home care workers will earn less because agencies like hers will cut hours back to eight-hour shifts.

Also warns that thousands will be put out of work. The thought here seems to be that agencies will shrink or fold because third-party payers won’t increase reimbursement rates to cover the overtime costs.

But opponents, including Edwards-Tate, focus mostly on harms to seniors and others with disabilities.

“The cost of overtime especially will make in-home non-medical care unaffordable for many, if not most, of the seniors and persons with disabilities we serve,” she says. Dire consequences predicted, including costly, taxpayer-funded institutional care and risks of elder abuse.

“The companionship exemption is a significant factor in helping to keep paid, senior caregiving affordable,” says another home care company president. It “helps seniors protect their assets while receiving the right amount of care.”

This isn’t, I think, an entirely self-serving argument.

Mandatory overtime compensation could increase home care costs, though the Labor Department thinks it’s likely that employers will adjust shifts to eliminate or at least minimize the extra hours.

The first scenario could create more home care jobs, though perhaps also reduce wages for workers who are currently putting in as many as 80 hours a week.

The second would drive up home care costs and/or the already high costs of long-term care insurance. By how much is purely speculative.

For some low-income people, mandatory overtime could mean loss of Medicaid-funded home care — either because states that haven’t had to deal with overtime decide to scale back services or because they won’t reimburse for the additional costs.

In the latter case, agencies refuse to serve Medicaid beneficiaries, as some doctors already do.

Still, I think it’s fundamentally wrong to exclude home care workers from basic labor protections because we’ve got an unresolved — and growing — social problem.

We might as well say the affordable housing shortage justifies exempting construction workers from the minimum wage.