UPDATE - Appeals court upholds fair pay for home care workers! On August 21, 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld the authority (pdf) of the Department of Labor (DOL) to extend minimum wage and overtime protections to home care workers. The DOL's rule change, scheduled to take effect in January 2015, had been held up in court after the for-profit home care industry challenged the DOL's authority. Read PHI's statement in response to the appeals court's decision.
Why Fair Pay is Important
Good for Workers
The extension of labor protections is an important step in recognizing home care as professional work that is essential to the future of our nation.
Good for Women
The home care workforce is 90% women--many supporting families on what they earn. They benefit directly from the security that these labor protections bring.
Good for America
More workers are needed for home care than for any other job in America. Better jobs will make it easier to recruit and retain good workers.
Home Care Association of America v. David Weil
On December 31, 2014, Judge Richard Leon of the U.S. District Court for the District of Columbia issued a temporary restraining order blocking implementation of fair pay for home care workers. On January 14, 2015, Judge Leon issued an opinion vacating the rule arguing that the DOL lacked the authority to change the rule without Congressional input.
- Text of Home Care Association of America v. David Weil (pdf)
- Text of Judge Leon's opinion vacating the rule (pdf)
The following affidavits in support of fair pay were submitted to the court in January 2015:
- Dr. Dorie Seavey, PHI Senior Policy Advisor (pdf)
- Kirk Adams, executive vice president of SEIU (pdf)
- Lance Kilpatrick, national campaign director of Caring Across Generations (pdf)
- Henry Claypool, executive vice president of the American Association of People with Disabilities (pdf)
- Michael Hancock, assistant administrator for policy at the U.S. Department of Labor's Wage and Hour Division (pdf)
On February 20, an appeal of Judge Leon's decision was filed (pdf) to the U.S. Court of Appeals for the District of Columbia Circuit.
On February 27, the following amici briefs were submitted to the court on behalf of the appellants:
- PHI and 26 other consumer and policy organizations (pdf)
- Members of Congress (pdf)
- Attorneys general of New York, Illinois, Massachusetts, and New Mexico (pdf)
- The ACLU and other women's rights, civil rights, and human rights organizations and scholars (pdf)
- AARP (pdf)
The National Employment Law Project has published a guide to the case (pdf), including its potential implications.
In March 2015, U.S. Department of Labor Secretary Thomas Perez sent a letter to state governors telling them to prepare for the rule's implementation.
In May 2015, Political Research Associates prepared a backgrounder (pdf) on the International Franchise Association, the industry group at the heart of the drive to fend off implementation of fair pay for home care workers.
In August 2015, the U.S. Court of Appeals for the District of Columbia Circuit upheld the authority (pdf) of the Department of Labor (DOL) to extend minimum wage and overtime protections to home care workers.
On September 1, the U.S. Department of Justice (DOJ) filed a motion to expedite the implementation of the court's decision. On the same day, attorneys representing the home care industry filed a motion to stay the court's decision, citing its ongoing attempt to file a petition for writ of certiorari to the Supreme Court
On September 2, the DOL sent a letter to state governors encouraging them to prepare for compliance and also posted a notice to their website announcing they will begin enforcement 30 days after the Court of Appeals opinion becomes effective.
On September 8, the DOJ responded to the plaintiffs' motion to stay the court's decision. On September 15, it reaffirmed the need to expedite the implementation of fair pay rules for home care workers.
On September 18, the U.S. Court of Appeals for the District of Columbia denied both the motion to stay and the motion to expedite (pdf) the decision.
On September 24, attorneys representing the home care industry applied to U.S. Chief Justice John Roberts (pdf) for a stay of the D.C. Circuit's decision.
- PHI's State Implementation Toolkit (pdf) - Provides resources to assist states with successful implementation.
- Action Steps for Consumers and Advocates Regarding the New Home Care Rule (pdf): A guide to preventing service cuts and protecting consumer-directed programs from the Bazelon Center
- FLSA Home Care Rule Toolkit - Helps stakeholders understand, assess the impact of, and prepare to implement the new regulations. From the National Resource Center for Participant-Directed Services.
From the Department of Labor
- A letter from the Departments of Justice and Health & Human Rights emphasizing compliance with the Americans with Disabilities Act
- The Wage and Hour Division has a section of their website devoted to the new rule
- A series of official fact sheets provide more details on various aspects of the rule
- The text of the final rule as published in the Federal Register
Facts About the Revised FLSA
FLSA Facts: Understanding the Revised Companionship Exemption - This fact sheet outlines the primary provisions of the revised regulation, explains which workers will and will not be newly eligible for minimum wage and overtime protections, and examines how the revision will affect consumer-directed programs.
FLSA Facts No. 2: Growing Home Care Industry Can Afford Basic Labor Protections - This fact sheet explains a lawsuit filed by the home care industry that has temporarily stalled the implementation of a federal rule change extending minimum wage and overtime protections to home care workers.
MAP: The Expansion of Labor Protections by State
A map showing how the expansion of minimum wage and overtime laws to home care workers impacts each state.
Reports & Fact Sheets
- Home Care Rule Advocacy Fact Sheet: How to Prevent Service Cuts and Protect Consumer-Directed Programs (pdf)
- Home Care: How Poverty Wages Undermine Care
- The National Employment Law Project (NELP) has issued a fact sheet explaining the new rule (pdf)
- DATA BRIEF: Institutionalization Rates in States that Extend Minimum Wage and Overtime Protection to Home Care Workers
- DATA BRIEF: Michigan Home Care Industry Growth Before and After Extending Labor Protections to Home Care Aides
- Guide to US Home Care Workforce. Using the best data and research evidence available, this national report presents the most complete picture possible of America’s home care and personal assistance workforce.
- Can home care companies manage overtime hours? (pdf). Examines three successful models.
- Comparing Cost of Personal Care Services and Caregiver Pay (pdf). Providers take in about twice as much as workers.
- Caring for Caregivers: Latinos in the Direct-Care Workforce (pdf) Overview of Latinos in the direct-care industry and how the companionship exemption affects conditions for these workers.
- FACTS 5: Home Care Aides at a Glance (pdf): Facts about the home care workforce
Presents first-person stories from more than 40 home care workers, consumers, employers, and advocates explaining why home care workers deserve the same basic wage protections as most other American workers.
August 21 - The federal appeals court issued an opinion upholding the Department of Labor's rule extending minimum wage and overtime to home care workers.
May 7 - A hearing took place before the US Court of Appeals for the DC Circuit.
January 27 - An expedited appeal filed by the DOL was accepted by the U.S. Court of Appeals for the D.C. Circuit.
January 14 - Judge Leon issued an opinion vacating the new rule on the grounds that the DOL did not have the authority to alter the rule without Congressional input.
January 1 - A two-week stay delaying implementation of the rule extending minimum wage and overtime to home care workers was put into effect by US District Court Judge Richard Leon.
December 22 - The federal district judge in Home Care Association of America v. Weil vacated the third party regulation included in the new rule. The ruling would allow home care agencies and other third-party employers to continue to avoid paying minimum wage and overtime to workers who provide companionship services. However, the decision left the narrowed definition of companionship in place.
October 7 - The DOL announced that a non-enforcement policy will be in place for the first six months of implementation. During this time period (Jan 1 - Jun 30, 2015), the DOL will not bring enforcement actions against any employer for violations of FLSA obligations resulting from the amended regulations. In the following six months (Jul 1 - Dec 31, 2015), the DOL will exercise prosecutorial discretion in determining whether to bring enforcement actions.
October 1 - The final rule was published in the Federal Register. Home care workers will be covered by minimum wage and overtime starting on January 1, 2015.
September 17 - The DOL announced that the rule had been finalized.
January - The draft rule was sent to the White House Office of Management & Budget (OMB) for final review.
March 21 - The comment period on the proposed rule, after being extended twice, closed. At least three quarters of the 26,000 comments support DOL's efforts to change the rule.
December 27 - The US Department of Labor (DOL) issued a notice of proposed rulemaking that would end the exclusion of home care workers from minimum wage and overtime protections.
The US Supreme Court, in a case brought by New York home care attendant Evelyn Coke, upholds the DOL’s authority to define exceptions to FLSA.
The Clinton DOL finds that “significant changes in the home care industry” have occurred and issues a “notice of proposed rulemaking” that would have made important changes to the exemption. The revision process is terminated, however, by the incoming Bush Administration.
The Department of Labor interprets the “companionship exemption” as including all direct-care workers in the home, even those employed by third parties such as home care agencies.
The FLSA is amended to include domestic employees such as housekeepers, full-time nannies, chauffeurs, and cleaners. However, persons employed as "companions to the elderly or infirm” remain excluded from the law.
The federal Fair Labor Standards Act (FLSA) is enacted to ensure a minimum standard of living for workers through the provision of a minimum wage, overtime pay, and other protections -- but domestic workers are excluded.
PHI Media Relations Director
October 9, 2013
The Honorable Thomas E. Perez
Secretary of Labor U.S. Department of Labor
200 Constitution Ave., NW
Washington, DC 20210
Dear Secretary Perez:
The organizations listed below commend you on issuing the final regulation extending minimum wage and overtime protections to millions of home care workers across the nation (RIN 1235-AA05, the “Application of the Fair Labor Standards Act to Domestic Service”).
As you know, the guarantee of these long-sought basic protections not only is a critical step for home care workers, but will also help to build and stabilize the workforce to meet growing demand from seniors and people with disabilities for home care services, which enable them to maintain their independence, health and safety while enjoying the comfort of their own homes. The new regulations are particularly important for women: almost 90 percent of home care workers are women, as are the majority of family caregivers who manage home care for aging, chronically ill, and disabled relatives.
The timing of this rule is auspicious – home care jobs are one of the nation’s fastest-growing occupations, projected to increase by 70 percent over the next decade (2010-2020). Currently, high turnover and a shortage of qualified workers hinder our national goal of enabling older adults and people with disabilities to remain living at home and active in their communities. Finalizing this rule is an important step in addressing these challenges. We look forward to working with you to ensure its effective implementation.
We are delighted that millions of home care workers will now be granted the basic labor protections they deserve, correcting a longstanding injustice and enabling these workers to better support their families and communities. Congratulations to you and your colleagues at the Department of Labor for your dedication to a thoughtful drafting and public review process and to ensuring that this revision came to fruition. We deeply appreciate your recognition of the important role of home care workers in securing access to high-quality long- term services and supports for all Americans.
Alliance for Retired Americans
American Federation of State, County and Municipal Employees (AFSCME)
American Geriatrics Society
American Society on Aging
Association for Gerontology and Human Development in Historical Black Colleges and Universities
Bend the Arc: A Jewish Partnership for Justice
Campaign for Community Change
Caring Across Generations
Center for Effective Government
Cooperative Home Care Associates
Coalition of Geriatric Nursing Organizations
Coalition on Human Needs
Direct Care Alliance
Eldercare Workforce Alliance
Family Values @ Work
Hand in Hand: The Domestic Employers Association
International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW)
Jobs with Justice/American Rights at Work
Institute for Policy Studies
Interfaith Worker Justice
National Asian Pacific Center on Aging
National Consumers League
National Consumer Voice for Quality Long-Term Care
National Council of La Raza
National Council on Aging
National Domestic Workers Alliance
National Employment Law Project
National Hispanic Council on Aging
National Participant Network
National Partnership for Women & Families
National Women’s Law Center
NETWORK, A National Catholic Social Justice Lobby
OWL-The Voice of Midlife and Older Women
PHI – Quality Care through Quality Jobs
Senior Service America, Inc.
Service Employees International Union
Wider Opportunities for Women
Why Home Care Workers Struggle With Low Wages
March 16, 2015 - PBS Newshour - With most aging Americans wanting to stay in their own homes, the need for in-home caregivers is skyrocketing. But unlike most other jobs, there's no federal guarantee that these workers get minimum wage or overtime.
Will Obama let down the left again?
October 1, 2014 - Krystal Clear original reporting - The Obama Administration weighs postponing a promised increase in wages for home care workers.
Krystal Ball: Home care workers are slipping through the cracks
September 30, 2014 - Krystall Ball notes that President Obama may be set to disappoint a major part of the Democratic coalition by delaying overtime protections to home care workers.
Biden: Home Care Workers Deserve Minimum Wage and Overtime
June 25, 2013 - Vice-President Biden, speaking on the 75th anniversary of the Fair Labor Standards Act, discusses the Administration's plans to honor its pledge to stop excluding home care workers from federal minimum wage and overtime protections. Shares personal story of employing caregivers for his mom.
MSNBC's Steve Kornacki on Home Care Workers' Lack of Federal Labor Protections
June 22, 2013 - Examines the political history that led to home care workers being excluded from federal minimum wage and overtime.
President Obama Announces Home Care Rule Change
December 15, 2011 - In this announcement, President Obama declares his support for a new DOL rule that would end the "companionship exemption": a DOL ruling that excludes home care workers from minimum wage and overtime.
Walk a Day in My Shoes: Barack Obama
In 2007, Senator Obama spent a day working alongside homecare worker Pauline Beck of Alameda, California, a mother of six children who earns $10.50 an hour and gets no sick time, overtime, or vacation pay.
We Can't Wait: Pauline Beck
In 2007, then-Senator Barack Obama spent a day with Pauline Beck, a homecare worker. He worked alongside her, getting to know the daily life and concerns of a homecare worker. Now, as President, he has taken action that will require homecare workers recieve at least a minimum wage and overtime protections - which many were previously exempt from.
Evelyn Coke Tribute Video
Home care worker Evelyn Coke brought her fight for fair pay all the way to the Supreme Court. PHI released this video on the first anniversary of her passing.
She loved the work, but she earned only around $7 an hour and got no overtime pay. For years Ms. Coke, a single mother of five, quietly grumbled, and then, quite uncharacteristically, rebelled. (New York Times)
August 21, 2015 - Workers, consumers, and advocates respond to the August 21, 2015 decision by the U.S. Court of Appeals, DC Circuit to uphold the DOL rule expanding federal minimum wage and overtime protections to the nation’s two million home care workers, reversing decades of exclusion.
September 19, 2013 - PHI National Policy Director Steve Edelstein discusses the announcement that federal minimum wage and overtime protections will be extended to most home care workers by January 2015 on America's Work Force Radio.
September 18, 2013 - PHI National Policy Director Steve Edelstein reacts to the federal rule that will extend minimum wage and overtime protections to most home care workers by January 2015 on NPR's Morning Edition.
April 18, 2013 - Audio from a press telebriefing featuring a range of stakeholders in support of the extension of federal labor protections to home care workers; Home care workers, employers, people with disabilities, and family caregivers.
May 1, 2013 - Carol Regan, government affairs director at PHI, is a featured guest on the Diane Rehm Show. She discusses the need to strengthen the home care workforce, the fastest growing occupation in America, and highlights efforts to reform the federal regulations that exclude home care workers from minimum wage and overtime protections.
October 26, 2012 - Dr. Dorie Seavey, director of policy research at PHI, is interviewed by Margaret Prescod for the "Sojourner Truth" radio show. The topic is the Department of Labor's proposed rule to end the companionship exemption.
March 30, 2012 - Steve Edelstein, PHI national policy director, discusses the background and current status of efforts to extend federal minimum wage and overtime protections to home care workers on the America’s Work Force radio program in Ohio.
March 7, 2012 - Steve Edelstein, PHI national policy director, discusses efforts to extend minimum wage and overtime protections to home care workers and the expected benefits to continuity and quality of care.