Press Release (pdf)

October 31, 2007 – “HR 3582 offers Congress an historic opportunity to send three important economic and social signals,” said Dorie Seavey, PHI’s director of policy research, in an October 25 hearing on a proposed bill to extend minimum wage and overtime protection to home care workers. “First, that home care workers should be on an equal footing with respect to all other low-wage occupations. Second, that, within long-term care, the home care labor market should not have second-class status with respect to compensation—and, therefore, with respect to its ability to attract and retain workers. And finally, that federal lawmakers can work together to coordinate, rather than send conflicting messages about, the direction of our nation’s long-term care policy.”

The background: The federal Fair Labor Standards Act (FLSA) was enacted in 1938 to ensure a minimum standard of living for workers through the provision of a minimum wage, overtime pay and other protections. It excluded domestic workers. In 1974 the FLSA was amended to include domestic employees such as housekeepers, full-time nannies, chauffeurs, and cleaners. However, a narrow exception was retained for babysitters and for employees who provide “companionship services to individuals who because of age or disability are unable to care for themselves.” The U.S. Department of Labor interpreted that “companionship exemption” as including all direct-care workers in the home, even those employed by third parties such as home care agencies.

In 2007 the United States Supreme Court, in a case brought by New York home care attendant Evelyn Coke, upheld the DOL’s interpretation of the companionship exemption. As a result, all direct-care workers in the home—whether they provide health-related or personal assistance services—are defined as “companions” and denied FLSA protection.

The bill: In response, Senator Tom Harkin (D-IA) and Representative Lynn Woolsey (D-CA) introduced the Fair Home Health Care Act (S. 2061/H.R. 3582). This bill would reword the 1974 amendment to extend federal wage and hour protection to home care aides. If enacted, only home care workers employed on a casual basis and “live-in” aides would be exempt.

The hearing: At the October 25 hearing held by the Subcommittee on Workforce Protections of the House Committee on Education and Labor, Brooklyn-based home health aide Manuela Butler testified that, if her client were in a nursing home, she would earn overtime for the extra hours she often puts in. “But because my work helps her to stay in her home, I am deprived of overtime pay,” she said. “That’s just wrong and unfair.”

Not only is this inequitable, Seavey added, but “maintaining this imbalance between the basic compensation available to home care and nursing home workers also undermines federal policy that encourages states to ‘rebalance’ their publicly funded long-term care systems in order to provide more home- and community-based.”

Henry Claypool, the policy director of Independence Care Systems, called rebalancing “the number one civil rights issue in this country” for people with disabilities. Exempting home care workers from wage and hour protections, he said, “exacerbates the institutional bias by making direct-care jobs in nursing homes more attractive than comparable jobs in community settings.”

Exempting home care workers from FLSA protection also hurts workforce development efforts, Seavey noted, effectively undermining the status of home care work relative to other low-wage jobs. “It is basically impossible to construct any economic argument as to why other domestic or household-based service jobs such as maids, cooks, housekeepers, and gardeners should receive this basic protection but home care workers should not.”

As to cost, that would need to be carefully evaluated on a state-by-state basis, Seavey said. “While there could be significant budgetary and service delivery implications in some states that would require adjustments in federal and state funding—at least during some transitional period—it is quite possible that the costs may not be as high as some fear.”

Virtually all 800,000 home care workers now in the labor force earn at least the federal minimum wage, Seavey testified, so the only significant economic cost associated with granting FLSA protections would be overtime pay—and the vast majority of aides do not work overtime. What’s more, at least 16 states and the District of Columbia already mandate overtime pay for some home care workers. Predictions of massive dislocations of care are really inconsistent with the experience of these states, Seavey argues.

William A. Dombi, vice president for law for the National Association for Home Care & Hospice (NAHC), recommended that FSLA protections be granted only as “part of a comprehensive plan to address home care aide protections and employment,” including additional state and federal funding to pay for overtime, health care coverage, career support, background check systems, and “consistent employee protections” such as workers’ compensation, unemployment compensation, OSHA safety, and “worker qualifications.”

“We welcome NAHC’s call for a comprehensive approach to improving the quality of home care jobs, and look forward to working with them to achieve that goal,” says Steve Edelstein, national policy director for PHI. “Clearly, the best way to meet the needs of older persons and persons with disabilities is ensure that care is provided by direct-care workers who are well-trained, well-supported and have quality jobs. However, we do not believe this to be an either/or choice of a comprehensive versus a piecemeal approach.

“Ending wage and hour discrimination against home care workers is a fundamental first step—one we can take now, while we work to develop a consensus on an omnibus legislative solution.”

More on the Fair Home Health Care Act:

• The Fair Home Health Care Act
• Testimony offered at the October 25 hearing
• PHI’s Fair Home Health Care Act analysis