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.


Bad Jobs in Our Very Own Homes

January 14, 2013

We’ve been hearing a lot about good jobs — mostly how we need more of them. Sometimes what could be done to create them.

Now comes the National Domestic Workers Alliance and partners with a report on really bad jobs — specifically, the wages, hours and other working conditions for nannies, housecleaners and caregivers for elderly and disabled people.

The report is based on a survey of more than 2,000 of these workers in 14 metropolitan areas across the country.

Lots of racial and ethnic diversity — though, as you might guess, little gender diversity in these “women’s work” occupations. Many countries of origin.

But the workers all had three things in common because that’s how the survey was designed.

They were at least 18 years old. They’d worked at least six hours the prior week in their domestic help occupation. And they were employed directly by the families they served.

No chance to blame agencies for the rock-bottom pay, lack of benefits and extraordinarily long hours — the last of these mainly for the live-in workers.

A sample of the findings to show what I’m talking about here:

  • The median wage for the workers surveyed was $10 an hour — well under the U.S. Department of Labor’s threshold for what full-time, year round workers need to earn for minimal economic security.
  • Twenty-three percent of the workers were paid less than the applicable minimum wage. And fewer than a third got overtime pay.
  • Ten percent of the workers didn’t always get paid what had been agreed on — or at all — during the prior 12 months.
  • Not surprisingly, 60% of the workers spent more than half their income on housing, and 20% sometimes didn’t have any food in their homes because they couldn’t afford to buy it.

In one respect, we can blame employers — ourselves, at least collectively — for taking advantage of the vulnerabilities of workers who’ve got no job security beyond keeping us reasonably satisfied.

There are vulnerabilities too, the report says, in the fact that domestic work is “invisible.” Who knows what goes on behind the closed doors of private dwellings?

Well, we do. And the report calls on us to be “part of the solution, ” i.e., to provide our domestic workers with contractual agreements, wages, benefits and other working conditions that befit people to whom we entrust the care of our loved ones, our possessions and the intimate details of our private lives.

In another respect, however, we can blame public policies for leaving domestic workers at the mercy of our inclinations.

As I’ve written before, home care workers aren’t covered under the Fair Labor Standards Act rules that generally require employers to pay the federal minimum wage and overtime.

The Act itself specifically exempts all live-in domestic workers from the overtime pay requirement.

Domestic workers are also exempt from the National Labor Relations Act, which establishes basic — if weakly enforced — protections for workers who try to organize and bargain collectively.

And from rules issued under the Occupational Safety and Health Act, which might, in theory, provide some protection.

To make matters worse, only 14 states and the District of Columbia require households to carry workers compensation insurance for their domestic employees, regardless of wages, hours or the number employed.

And unemployment insurance benefits are iffy due to states’ rules on minimum earnings — and more often than not, requirements that exclude workers who can’t accept full-time jobs.

Say, for the sake of argument, that all these laws were amended. A large number of domestic workers still couldn’t assert their rights to the wages and other conditions DWRA advocates for because they’re not authorized to be here.

We don’t know how many there are because the Census Bureau sensibly doesn’t try to find out. We do know they were 47% of the DWRA survey sample, however.

Their wages were lower than those of other workers surveyed. And more of them experienced problems with their working conditions.

But 85% of them said they didn’t complain because they feared their immigration status would be used against them, i.e., that their employers would take revenge by reporting them to the authorities.

So it would seem that improving domestic workers’ jobs would require the long-overdue reform of our immigration laws, as well as elimination of the aforementioned exemptions.

What’s true for immigration laws is also true for other laws, the report says, because “[i]t is difficult to advocate for the rights of domestic workers in an economic and political environment in which the rights of low-wage workers more broadly are so badly frayed.”

So we have to seek public policies that raise standards and improve opportunities for the whole low-wage workforce. But we’ve obviously got to address the occupation-specific exclusions too.

In 2010, there were 726,437 domestic workers in private households — nearly 10% more than in 2004, according to the Census Bureau.

This is probably an undercount — in part because those who are undocumented may understandably have chosen not to share information with any government agency.

Whatever the true number, millions of other workers depend on housecleaners, nannies and other caregivers to free up their time for more rewarding occupations.

We’re told that many say their domestic employees are “like a member of the family.”

Imagine what would happen if we thought of real family members constrained to work so hard for so little — and with so few of the basic legal and safety net protections we usually take for granted.