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Three brief stories on direct care:

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Consumer Voice Launches Home Care Survey

Consumer Voice

In an effort to improve the quality of home care, the Consumer Voice is conducting a survey of:

• consumers who have received home care services and supports in the past year or two, and
• families and friends who have arranged these services for others.

The survey is available online. The deadline to complete it is September 1.

The Consumer Voice represents consumers in issues related to long-term care, helping to ensure that consumers are empowered to advocate for themselves.

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Book Examines Home Care Workers’ Lives

A new book explores the deep, often profound impact that the daily routine of caregiving has on the lives of home care workers.

Clare L. Stacey, an assistant professor of sociology at Kent State University, drew upon interviews with home health aides and personal and home care aides to write The Caring Self: The Work Experiences of Home Care Aides.

The book examines the meaningful ties that many home care workers make with the elders and people with disabilities for whom they provide care.

It also details the difficult and often unfair conditions under which home care workers must work, and the emotional and physical toll those conditions can take.

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New York State Person-Centered Care Initiative to Expand

The Western New York Alliance for Person-Centered Care (WNYAPCC) has created a membership program in an effort to expand its person-centered care initiative.

The program is designed to enhance collaboration and synergy among organizations and health care professionals that provide long-term care and geriatric services in an eight-county region in New York State.

More information on the membership program is available on the WNYAPCC website.

– by Deane Beebe and Matthew Ozga

During the week of July 25, the U.S. Department of Labor (DOL) Wage and Hour Division hosted two telephone conferences with stakeholders in order to hear perspectives on DOL’s plan to issue revised regulations, this fall, for the companionship exemption in the Fair Labor Standards Act.

The rule in question is a 1974 amendment to the law, which created an exemption from minimum wage and overtime protections for workers described as “casual babysitters” and persons “employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.”

Participation on the calls was spirited.

Home Care Has Transformed

Individuals supportive of a revision of the exemption noted that 21 states and the District of Columbia have already instituted minimum wage protection for home care workers, and 15 states provide overtime, without the catastrophic consequences predicted by opponents of the change.

Supporters, including home care aides, PHI, the National Employment Law Project (NELP), and National Consumer Voice for Quality Long-Term Care, also argued that the workforce must be afforded basic labor protections in order to strengthen the home- and community-based workforce and improve recruitment and retention.

A home care employer in Arizona with 30 years of experience spoke up in support of a revision, saying that in her decades of experience, home care has transformed from companionship into skilled care.

Opponents of revising the exemption, including the National Private Duty Care Association, Home Care Association of New York State, and large home care chains like Home Instead, said it would be more difficult to pay home care workers additional wages for overtime due to low reimbursement rates from Medicaid.

Opponents also suggested that more care would be provided through the “grey market” if minimum wage and overtime protections were extended to home care workers, resulting in decreased tax revenue and greater vulnerability for consumers and workers.

DOL noted that participation in the calls does not substitute for formal comments on the revised regulations when they are issued.

Campaign to Revise the Companionship Exemption

PHI, along with NELP, SEIU, AFSCME, and the Direct Care Alliance, have been calling on DOL to revise its regulations to stop the exclusion of 1.7 million home care workers from basic labor protections.

Visit PHI’s Campaign for Fair Pay to learn more about the “companionship exemption” and how to contact DOL Secretary Hilda Solis regarding the exemption.

– by Gail MacInnes, PHI National Policy Analyst

Next week, the Department of Labor (DOL) will conduct two “listening sessions” regarding the companionship exemption to the Fair Labor Standards Act.

During the sessions, the DOL will solicit public opinion on whether it should modify the exemption to give home care workers federal minimum-wage and overtime protections.

The sessions will be conducted between 4 p.m. and 5 p.m. EST on both July 25 and 27. Those interested in participating should call (888) 730-9140 and enter the passcode 34478.

Advocates for home care workers — including the PHI Campaign for Fair Pay and the National Domestic Workers Alliance — are encouraging supporters to call and tell the DOL that home care workers deserve minimum wage and overtime protections.

Supporters are urged to call in early, as there will likely be a queue to speak.

– by Matthew Ozga

The Eldercare Workforce Alliance (EWA) sent a letter to Department of Labor (DOL) Secretary Hilda Solis on July 15, urging that she use her authority and “take timely action” to reinterpret the “companionship exemption” in the Fair Labor Standards Act (FLSA).

The letter (pdf) explains that extending federal minimum wage and overtime protections to the nation’s 1.5 million home- and community-based care workers who provide critical long-term services and supports to elders and people with disabilities would both improve the quality of care for consumers and provide better support for family caregivers.

THe DOL will be holding call-in listening sessions on the FLSA’s companionship exemption on July 25 and 27.

Facilitating the Recruitment and Retention of Workers

Expanding federal wage and hour protections to these workers would “improve quality care by facilitating the recruitment and retention of a quality workforce,” said PHI President Steven Dawson and American Geriatrics Society Chief Operating Officer Nancy Lundebjerg, the co-conveners of the EWA, a coalition of 28 organizations representing the nation’s leading advocates for older adults, who signed the letter.

The EWA letter reminds Secretary Solis that with the aging of our nation’s population, direct-care workers are the “fastest-growing employment sector within the health care industry” and that “strengthening home care occupations can also drive long-term economic growth, particularly within low-income communities.”

FLSA Improvements Urged at House Hearing

Just one day earlier, the House Education and the Workforce Committee’s Subcommittee on Workforce Protections held a hearing entitled, “The Fair Labor Standards Act: Is It Meeting the Needs of the Twenty-First Century Workplace?,” chaired by Representative Tim Walberg (R-MI).

In his opening remarks, Walberg noted that FLSA “governs the employment of more than 130 million workers.” He went on to say that FLSA “reflects our shared desire to see individuals receive fair compensation for their work. We all want, as the saying goes, to see a worker complete an honest day’s work for an honest day’s pay.”

Walberg said that there have been unintended consequence of the FLSA; the law has been challenging for employers, especially small businesses; litigation under the law has skyrocketed; and new technologies have impacted the workplace since the FLSA was enacted decades ago in 1938.

Evolution of the Home Care Industry

Judith M. Conti, the federal advocacy coordinator at the National Employment Law Project (NELP), testified (pdf) at the hearing, stressing both the importance of the FLSA — especially for low-income, hourly wage workers — and the importance of vigorously enforcing the law.

Conti said, however, that the “companionship exemption” was an FLSA protection that needed to be modernized.

Referring to the home care workforce, she said, “Whatever the merits of their original exclusion from minimum wage and overtime protections, this archaic exemption has failed to keep up with the evolution of the industry and the workers who have built” it.

Conti recommended that Congress pass the Direct Care Job Quality Improvement Act of 2011 (H.R. 2341) to “remedy a serious flaw in current DOL regulations.” She added that DOL also has the authority to “remedy this injustice” by revising the regulations.

The companionship exemption is on DOL’s Regulatory Agenda, and Conti urged the department to act swiftly and issue proposed regulations.

– by Deane Beebe

Evelyn Coke

Evelyn Coke, who fought for basic wage protections for home care workers, died two years ago this July 9.

Coke — herself a home care worker in Long Island, New York — challenged the “companionship exemption” to the Fair Labor Standards Act (FLSA), which states that home care workers are exempt from federally guaranteed minimum wage and overtime protections.

Her case went all the way to the Supreme Court. In 2007 the court ruled (pdf) that the companionship exemption was an appropriate exercise of the Department of Labor‘s (DOL) rulemaking authority and therefore legally binding.

However, the court’s decision maintained that the DOL has the authority to end the exemption and grant home care workers fair pay under the FLSA.

PHI Campaign Honors Coke’s Legacy

In the years since the Supreme Court’s ruling was handed down, PHI has drawn attention to Coke’s fight to end the companionship exemption through its Campaign for Fair Pay.

The campaign encourages supporters of fair pay for home care workers to contact DOL Secretary Hilda Solis and urge her to end the companionship exemption.

As a result of the campaign and increased media attention, the DOL announced in the spring of last year its plans to review the companionship exemption, with a proposed rule published for public comment by October 2011.

In a memorial op-ed published last year in Newsday, PHI President Steven Dawson and Direct Care Alliance Executive Director Leonila Vega wrote that DOL’s plans to reconsider the companionship exemption were made possible by the courage of Evelyn Coke.

“She had faith in the American system of justice, believing that even she, an immigrant who never earned more than minimum wage, could ask to be treated fairly,” they wrote.

“It’s unfortunate that she didn’t live to see justice done.”

– by Matthew Ozga

To mark the fourth anniversary of the Supreme Court decision on Long Island Care at Home v. Coke, national and state organizations sent a letter to Department of Labor (DOL) Secretary Hilda Solis, urging her to issue regulations to narrow the “companionship exemption.”

The exemption currently excludes two million home care workers from the federal minimum wage and overtime protections afforded to most American workers through the Fair Labor Standards Act (FLSA).

Services provided by home care aides are “far more crucial and require more skill than providing simple companionship,” states the June 15 letter (pdf).

The organizations are calling on the secretary to make the following two reforms:

• Workers employed by a home care agency or other intermediary should not be exempt from wage and hour protections under any circumstance; and
• The definition of “companionship” should be narrowed to encompass only fellowship and protection, which would extend FLSA protections to the vast majority of home care workers who assist their clients with activities of daily living (ADLs) and instrumental activities of daily living (IADLs).

Manageable Cost, Numerous Benefits

The letter also informs the secretary that the cost of ending the companionship exemption is “manageable for the industry and for public budgets.” It notes that 21 states already provide at least some level of minimum wage and/or overtime protection, and that some multi-state employers are doing so “to attract a stable workforce.”

The organizations wrote that revising the regulation will also:

• have a positive economic impact in low-income communities where many home care workers reside;
• help build the direct-care workforce to support family caregiving responsibilities, which cost U.S. companies $34 billion annually in lost productivity; and
• align the labor policy with federal policies that encourage the expansion of home- and community-based long-term care services.

The letter to Solis was circulated by PHI and signed by 30 organizations, including the Alzheimer’s Foundation of America, the American Geriatrics Society, Wider Opportunities for Women, and labor unions such as SEIU and AFSCME.

It is expected that the DOL will issue revised regulations addressing the companionship exemption this fall.

Legislative Efforts to End the Companionship Exemption

Other measures to end the federal companionship exemption are also moving ahead in the nation’s capital.

Representative Linda Sanchez (D-CA) is expected to reintroduce legislation to limit the companionship exemption on June 23.

Senators Bob Casey (D-PA), Tom Harkin (D-IA), and Bernie Sanders (I-VT) will follow suit on the same day by reintroducing a bill into the Senate.

“We applaud Representative Sanchez and Senator Casey for their leadership on fixing this outdated policy by introducing the Direct Care Job Quality Improvement Act,” said Carol Regan, PHI director of government affairs. “We also look forward to the release of revised FLSA regulations by the Department of Labor in the fall.”

Contact Secretary Solis

To learn more about the FLSA regulation that excludes home care workers from federal labor protections, and how to contact Secretary Solis to change it, visit the PHI Campaign for Fair Pay page.

– by Deane Beebe