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On November 3, the Office of Management and Budget (OMB) announced that it had accepted for review proposed regulations from the Department of Labor (DOL) addressing the companionship exemption to the Fair Labor Standards Act (FLSA).

Currently, the companionship exemption excludes home care workers from FLSA overtime-pay and minimum-wage requirements.

PHI’s Campaign for Fair Pay calls for the OMB and DOL to issue new regulations revising the exemption to allow home care workers receive those basic wage protections.

In recent weeks, the Senate Committee on Health, Education, Labor and Pensions and a group of more than 40 economists and other researchers have separately urged the DOL and OMB to move ahead with new proposed regulations revising the companionship exemption.

– by Matthew Ozga

Workers in nursing and residential care facilities experienced the highest injury rates of any occupational setting in 2010, according to data (pdf) recently released by the U.S. Bureau of Labor Statistics (BLS).

Overall, the country’s private-industry employees suffered nonfatal injuries and illnesses at a rate of 3.5 cases per 100 full-time workers last year, down from 3.6 in 2009.

But private nursing and residential care facilities reported an injury/illness rate of 8.3 per 100 workers — higher than couriers and messengers (7.2), air-transportation employees (8.1), and people involved in performing arts, spectator sports, and related industries (6.7).

Combined, the health care and social assistance industry reported a higher injury/illness rate than any other private sector.

Public-Sector Injury Rate Even Higher

Nursing and residential care facility workers employed in the public sector suffered even higher injury rates than their private-industry counterparts, the BLS report additionally found.

The injury rate among nursing and residential care workers employed by local governments was 11.4 per 100 full-time employees. Those employed by state governments, meanwhile, recorded an injury rate of 15.1.

BLS reports a total of just 218,200 workers in public-sector nursing and residential care facilities, compared with more than 3.1 million such workers in the private sector.

Labor Secretary Expresses Concern

“We remain concerned that more workers are injured in the health care and social assistance industry sector than in any other, including construction and manufacturing,” said Department of Labor Secretary Hilda Solis in a statement.

“The Department of Labor’s Occupational Safety and Health Administration will continue to work with employers, workers, and unions in this industry to reduce these risks,” Solis added.

Many of the people employed in the nursing and residential care industry are direct-care workers.

“Direct-care workers in nursing and residential care settings face a greater injury rate than nearly any other job type in the country,” said PHI Government Affairs Director Carol Regan.

“Unfortunately, more than one in four lack health insurance (pdf). It is wrong that direct-care workers who get sick or hurt while caring for others cannot get comprehensive care for their own injuries or illnesses,” Regan added.

In 2008, Regan appeared in a short video, “The Most Dangerous Job in America,” to highlight the inordinately high injury risks that nursing assistants face each day.

– by Matthew Ozga

Economists, social scientists, and policy researchers from more than 40 universities and organizations sent a letter to U.S. Department of Labor (DOL) Secretary Hilda Solis and Director of the Office of Management and Budget (OMB) Jacob Lew urging them to extend minimum wage and overtime protections to home care workers under the Fair Labor Standards Act (FLSA).

The Economic Policy Institute, the Center for Economic and Policy Research, and PHI were among the organizations that signed on to the letter.

The October 28 letter (pdf) lists some of the benefits of narrowing the companionship exemption to its original purpose, which was to exclude casual eldercare companions from FLSA protections:

Dean Baker

• modest improvements in the earnings and working conditions of home care workers;
• long-run improvements in the quantity, quality, and reliability of labor supply; and
• reduced turnover among workers, with concomitant reduction of transaction costs to employers and improved continuity of care to clients and consumers.

“Home care workers should get the same protections as any other worker in the country,” said Dean Baker, co-director of the Center for Economic and Policy Research, who signed onto the letter.

“It’s a fairly simple issue: why would you single out a group of workers to not get what everyone else has?” he said.

Nancy Folbre, an economics professor at the University of Massachusetts, Amherst who also signed the letter, recently blogged about the “outmoded” companionship exemption in “The Depreciation of Care at Home,” in The New York Times.

DOL Developing Revised Regulations

DOL hosted two listening sessions on the companionship exemption this summer and has said that it is in the process of developing revised regulations.

PHI — along with the National Employment Law Project, SEIU, AFSCME, and the Direct Care Alliance — have been calling on DOL to revise its regulations to the companionship exemption to end 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 and OMB and signal your support for revising the companionship exemption.

– by Gail MacInnes, PHI National Policy Analyst

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