Evelyn Coke

An op-ed (pdf) co-written by PHI President Steven Dawson and published in the July 22 Newsday pays tribute to the “American heroine” Evelyn Coke.

The full article, by Dawson and Direct Care Alliance executive director Leonila Vega, can be found below or at the Newsday website.

Support the campaign on Facebook. Find more information at the PHI PolicyWorks website, or by watching PHI’s video, Fair Pay for Caregivers: A Tribute to Evelyn Coke.

Companions need a helping hand

Too many home health care workers are still subjected to unfair labor practices

By Steven Dawson and Leonila Vega

A year ago this month, an American heroine passed away. Her name was Evelyn Coke. She wasn’t well-known, but hopefully someday Coke will be remembered for battling unfair labor practices.

Evelyn Coke was a resident of Queens who worked for an East Meadow-based home-care agency. She was among the 2 million workers — many immigrants like herself — who assist elders and people with disabilities with daily activities such as getting in and out of bed, dressing and undressing, cooking and eating, toileting and bathing. As we age, many of us will need this support to remain independent, living in our homes and communities with our families and friends.

Like many of her co-workers, Coke worked long hours for little pay. Though she sometimes cared for her clients more than 70 hours a week, she claimed to have earned less than minimum wage (which was $5.15 per hour in 2002). Despite sometimes working three 24-hour shifts in a row, she never received time and a half for overtime.

Forced to retire after an auto accident, Coke believed that she had been treated unfairly, and sued her employer for back wages. Her case went all the way to the Supreme Court. But unfortunately, Coke lost.

In 2007, the U.S. Supreme Court ruled that the U.S. Department of Labor regulations excluding home care workers from the labor protections provided by the Fair Labor Standards Act were valid and binding. That is, the Labor Department could continue to treat home-care workers as informal “companions” — that is to say, baby-sitters.

The U.S. Supreme Court also ruled that the secretary of labor had broad policy-making authority over the scope of “companionship” and could change the current interpretation at any time.

It is past time to make that change.

While New York State just passed a landmark Domestic Workers Bill of Rights, the legislation states that “domestic worker” does not include any individual who is engaged in providing “companionship services” as currently defined by the regulations for the federal Fair Labor Standards Act, or domestic workers who are employed by agencies. So thousands of direct-care workers in New York fall outside of its protections.

Home care is one of America’s fastest-growing occupations. Far from casual companions, these workers play a critical role in our health care system, not only helping their clients live at home, but providing essential supports that keep them out of costly hospitals and nursing facilities. As we move forward with implementing health reform, home care workers can play a crucial role in coordinated care models and in care transitions — important changes that can improve care and save money. We should recognize their contribution by treating them like the professionals they are.

Evelyn Coke had the courage to speak up for herself and her co-workers. 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. It’s unfortunate that she didn’t live to see justice done.

But there’s new hope for her battle for justice now that the Department of Labor has announced it is studying the companionship exemption.

Before the Labor Department’s announcement, several members of the U.S. Senate and the House of Representatives had requested that the department fix this injustice. Within the next few weeks, Rep. Linda Sanchez (D-Calif.) is planning to introduce legislation that would put an end to the home care workers exemption.

In honor of Coke and the millions of home care workers nationwide, Secretary of Labor Hilda Solis should immediately provide all home care workers with the minimum wage and overtime protections promised to American workers under the Fair Labor Standards Act.

We cannot tolerate this injustice any longer.

In 2009, 36 states reported average hourly wages that fell below 200 percent of the Federal Poverty Level, up from 32 states in 2008, according to the analysis reported in PHI’s updated State Chart Book on Wages for Personal and Home Care Aides (pdf).

Wages below 200 percent of the federal poverty level ($10.42) are low enough to qualify workers for many state and federal public assistance programs.

“That fully two-thirds of states are now showing these kinds of low wage levels for personal care workers is very disappointing,” said Dorie Seavey, PHI director of policy research.

“These very low wages are a significant obstacle to meeting the country’s rapidly growing demand for personal assistance services,” Seavey said. “They also jeopardize the economic security of hundreds of thousands of caregivers who make it possible for others to live independently.”

Data Spans 10 Years

The updated Chart Book tracks wages in all 50 states and the District of Columbia, and for the first time presents a full decade of data from 1999 to 2009.

Other highlights include:

• After adjusting for inflation, national wages for home care aides and personal care aides (PCAs) essentially remained unchanged over the 10-year period.
• In 2009, within the continental U.S., state nominal median wages ranged from $7.50 in Texas to $12.01 in the District of Columbia; real median wages (in 1999 dollars) ranged from $6.01 to $9.66.
• Over the 10-year period, 15 states showed a decline in real median wages for these workers. Eight states saw real wages fall by 5 percent or more.

“For the first time, with the passage of health reform, the need to improve the quality of personal care aide jobs is receiving concerted federal attention,” said Steve Edelstein, PHI national policy director.

Informing Health Reform

“PHI’s PCA wage analysis is very timely. It can inform the federal government’s growing concern with improving the quality of these jobs and ensuring that there is a sufficient PCA workforce to meet future demand,” Edelstein said.

The national health care law includes numerous opportunities (pdf) for PCAs, including:

• the formation of a PCA Workforce Advisory Panel that will be charged with examining and advising on PCA workforce issues, including wages, benefits, and access to services;
• and the awarding of grants to six states to develop PCA training demonstration programs that emphasize core competencies and certification of these workers.

– by PHI Policy Team

“Aiming Higher: Removing Barriers to Education, Training and Jobs for Low-Income Women” (pdf) also proposes several policy changes to the Workforce Investment Act (WIA), Temporary Assistance for Needy Families (TANF), and other federal programs, all aimed at increasing opportunities for low-income women.

Although direct-care workers are not specifically mentioned in the report, they would clearly stand to benefit from the programs and the policy suggestions.

The direct-care workforce (pdf) is 90 percent female, and the median yearly income of all direct-care workers is just $17,000. More than four in ten direct-care workers rely on public benefits for basic services.

“Home health aides and personal care aides are the third and fourth fastest-growing occupations (pdf) in the country and are far too often overlooked when it comes to investments in entry-level training — let alone career ladders,” said Carol Regan, PHI government affairs director. “This report highlights the need for WIA to be changed to address this workforce.”

Proposed Policy Changes

The report recommends that federal policymakers should work to help low-income women find jobs more easily. Some of the specific recommendations include:

• WIA should be modified to strengthen the career paths available to low-income workers by expanding education and job training systems.
• Low-income workers should be made more aware of the specific benefits offered by TANF.
• Congress should pass the Local Jobs for America Act, which would authorize the distribution of $100 billion over two years, targeted at maintaining vibrant job markets in local economies.

The report notes that, by strengthening job opportunities for low-income female workers — a group especially vulnerable to the current economic recession — federal policymakers would be strengthening the entire U.S. economy from its foundation up.

Programs Promote Good Jobs

The report profiles nine local programs that aid low-income women in their drive to secure and maintain meaningful, stable, and high-quality jobs.

One program, Memphis Hope, helps former public-housing residents in Memphis, Tennessee, find jobs. Memphis Hope cooperates with local businesses and has a very high success rate of matching women with rewarding job opportunities.

Other programs profiled in the report promote work experience and on-the-job training, address stereotypes that plague low-income women, and educate women on the work supports available to them.

About the Campaign

The Women’s Economic Security Campaign is a project of four women’s funds scattered throughout the U.S.: the Chicago Foundation for Women, the Washington Area Women’s Foundation, the Women’s Foundation for a Greater Memphis, and the Women’s Foundation of California.

Representatives from those women’s funds spoke about the “Aiming Higher” report in a two-part video interview at Spotlight on Poverty and Opportunity. Part one explains the challenges low-income women are facing during the recession, while part two explains some of the practices described in the report.

– by Matthew Ozga

NY State Supreme Court in New York City

A home care worker has filed a class-action lawsuit against her employer, McMillan Home Care Agency, for failing to pay overtime.

The suit further contends that the New York City–based agency did not provide compensation for attending mandatory training sessions or reimbursement for uniform cleanings and required supplies such as latex gloves.

It also alleges that McMillan repeatedly falsified or misreported pay records.

State Provides Better Wage and Hour Protection

While regulations interpreting the federal Fair Labor Standards Act (FLSA) exempt home care aides from minimum wage and overtime protections, New York State law requires that overtime be paid to home care aides at time-and-a-half at the minimum wage — but not at the aide’s regular hourly wage.

The state law, however, does not extend this protection to “companions to the sick or elderly who live in their employer’s home and whose principal duties do not include housework.”

“The New York State labor law is these home care workers’ only line of defense from substandard jobs because the workers are excluded from federal minimum wage and overtime law,” said Staff Attorney Sarah Leberstein of the National Employment Law Project (NELP), one of three law firms that filed the case at the New York State Supreme Court.

“Upholding the state law is critical, because allowing violations in this crucial industry leaves workers defenseless to wage abuse — and puts all low-wage workers at risk.”

Allegations Made in Lawsuit

The suit contends that Josefina Toledo Montero, a home care aide, and her coworkers frequently worked up to 60 hours or more for the home care agency and were not paid overtime after 40 hours, as required by the state law.

Instead of paying the overtime rate, the home care agency paid these workers their regular hourly wage. After three years on the job, Montero’s hourly wage had increased to $7.25.

The class could potentially include hundreds of workers since the suit covers all of the home care workers employed by the agency for the last six years — the state’s statute of limitations for wage claims.

Wage Violations Rampant

A recent study published by NELP, Working Without Laws: A Survey of Employment and Labor Violations in New York City (pdf), found that nearly 83 percent of home care workers surveyed experienced overtime violations and 84 percent worked “off the clock” without receiving pay for part of their working time.

“Cheating home care workers out of wages they have earned may pad the pockets of unscrupulous employers but it hurts everyone else in the system — the workers robbed of their pay; the families that depend on those wages for basic support; and the elderly and disabled, whose care is at most risk of compromise when the people who care for them are treated unjustly and cheated of wages they have earned,” said Leberstein.

Campaign to Extend Labor Protections

PHI has launched a social media campaign that calls on Labor Secretary Hilda Solis to end the exclusion of home care workers from minimum wage and overtime protections.

– by Deane Beebe

NYC Council Member Annabel Palma

A coalition of home care workers, family caregivers, and disability and senior advocates — along with New York City Council Member Annabel Palma (D, District 18) — rallied to oppose the state’s proposed 12-hour limitation on personal care hours in the Medicaid Personal Care Program.

The press conference, held on the steps of New York City Hall on March 8, was organized by 1199/SEIU and featured several speakers, including a worker and a client.

12-Hour Cap Would Force Consumers into Nursing Homes

The New York State Executive Budget proposes to redirect seniors and people with disabilities who currently receive more than an average of 12 hours of Medicaid personal care services a day into other community-based programs, such as Managed Long-Term Care (MLTC), the Long Term Home Health Care Program, and Nursing Home Transition and Diversion Waiver.

The state expects this proposal to yield savings of $78.7 million over the next two fiscal years.

Because of limitations in these other community-based programs, many advocates are concerned that the proposed cap would essentially force personal care recipients into nursing homes. This appears to be at odds with the state’s long-held policy of allowing people to live in the least restrictive community-based settings. It also conflicts with the Supreme Court’s Olmstead decision and the Americans with Disabilities Act.

Workers Forced to Choose Between Wages and Clients

Home care workers would also be negatively affected by the proposal. In New York City’s personal care program (known as the Home Attendant program), personal care aides are covered by the city’s Living Wage Law (pdf) and paid $10 an hour. However, aides in the other community-based programs are often paid at, or near, the minimum wage (the average starting wage is $8).

This new proposal would force some home care workers to either lose their clients (many of whom they have been with for many years), or take a $2 an hour wage cut.

“I oppose the state’s proposed personal care cap because it will hurt seniors and people with disabilities, along with the dedicated home attendants who care for them,” Palma said.

“Hundreds of home care workers in my district could lose their jobs and benefits if this policy is instituted. The relatively small projected budgetary savings cannot justify the likely harm to thousands of New York’s most vulnerable residents,” Palma continued.

New York State’s budget for the next state fiscal year is due April 1. The final budget will include a decision on the cap.

– by Meghan Shineman

PHI PolicyWorks has released an updated State Chart Book on Wages for Personal and Home Care Aides (pdf). The chart book tracks wages in all 50 states and the District of Columbia for the period 1999-2008. It shows that nationally, the median real wage (adjusted for inflation) for personal and home care aides has decreased by 3 percent over nine years, from $7.50 to $7.31.

“Wages for personal and home care aides are so low,” says PHI Director of Policy Research Dorie Seavey, “that about 20 percent of these workers received a raise on July 24 when the minimum wage increased to $7.25/hour.” Low wages, Seavey noted, make it more difficult for states to attract the workers needed to support growing numbers of elders and people with disabilities who want to live in their communities.

Other highlights gleaned from the data compiled in the State Chart Book on Wages include:

• In 2008, the nominal median wage ranged from $7.05 in Texas to $12.55 in Alaska, while the real median wage ranged from $5.61 to $9.90.
• Over the 9-year period, 21 states showed a decline in real median wages for PHCAs. Real wages fell by more than 5 percent in 12 states.
• In 2008, no state reported a PHCA wage above 250 percent of the Federal Poverty Line (FPL) wage for a single individual ($12.50/hour), a level that approximates an economically self-sufficient wage for a single individual but is likely insufficient for an adult with dependent children.
• In nearly two-thirds of states (32), average hourly wages for PHCAs were below 200 percent of the Federal Poverty Line wage for individuals in one-person households working full time. Since at 200 percent of FPL, households often quality for state and federal assistance programs, in these states most PHCAs, particularly those with dependents, are earning near-poverty level wages.

“Personal and Home Care Aides are projected to be the second fastest growing occupation between 2006 and 2016. Increasing wages for these workers is essential for meeting this demand,” says PHI National Policy Director Steve Edelstein.

“Further, federal policy proposals to increase home and community based services cannot be realized without making these jobs more competitive. The state wage chartbook shows just how far we have to go.”

Hilda Solis

A July 9 New York Times editorial calls for home care aides to receive minimum wage and overtime protections under the Fair Labor Standards Act. As the Times notes, in 2007, the Supreme Court upheld a 1975 labor regulation that defined home care aides as “companions,” but that regulation can be reversed anytime by Secretary of Labor Hilda Solis. This is the second editorial the Times has published on the issue; the first appeared in January 2009.

This second editorial was spurred in large part by “Dear Colleague” letters from both the U.S. House and Senate to Secretary of Labor Solis—part of an advocacy campaign organized by the Direct Care Alliance–urging the Secretary to re-consider the companionship exemption.

PHI applauds the Times for continuing to pressure the Department of Labor to ensure that home care workers are provided with minimum wage and overtime protections. PHI worked extensively with the Times editorial staff, providing the backround data for both editorials.

The July 9 editorial follows closely on a June 26 article in the Wall Street Journal, “Political Shift Revives Dispute over Overtime Pay,” that highlighted the companionship exemption issue. In his letter to the Wall Street Journal, PHI President Steven Dawson’s reiterated support for FSLA protections, while also noting the importance of “minimizing disruption” for employers and consumers. “In the end,” however, he notes, “the needs of some can never be justified by continued exploitation of others.”

In California, cheers from SEIU and other homecare supporters over the state’s abandonment of a plan to slash wages for home health workers (“Wage Cuts Avoided for CA Home Care Workers“) gave way to renewed protests last week as the state revisited the plan after being told that it does not, in fact, violate the terms of the American Recovery and Reinvestment Act (ARRA) (“U.S. backs off threat to withhold California stimulus money,” Los Angeles Times, May 20).

The new ruling came a day after California voters rejected a series of fiscal ballot initiatives intended by Gov. Arnold Schwarzenegger to help fix the budget.

In response, Schwarzenegger brought back the plan to cut wages for home care workers and began announcing a series of draconian cuts to state programs that would include, among other things, the complete elimination of welfare and medical insurance for low-income families.

“I understand that these cuts are very painful and they affect real lives,” he said. “This is the harsh reality and the reality that we face. Sacramento is not Washington — we cannot print our own money. We can only spend what we have” (“California faces its day of fiscal reckoning,” Yahoo! News, May 23).

SEIU and others react

SEIU and other homecare advocates have been swift to respond. On May 22 more than 5,000 homecare providers, care recipients, and disability and senior advocates rallied in front of the California State building in downtown Los Angeles to protest the proposed cuts to the state’s home care program.

On Tuesday — the very day that Schwarzenegger outlined a plan to cut funding for even more state programs– SEIU launched a planned month of protests, began a 48-hour vigil on the grounds of the state capitol, and filed a class action lawsuit seeking a preliminary injunction to stop the State of California and Fresno County from cutting home care worker wages and reducing care hours for seniors and people with disabilities. The suit charges that the cuts will put these people at risk and violate the ADA and federal Medicaid law.

On Wednesday the Los Angeles Times ran a letter from Pauline Beck, the California home care worker with whom Obama prominently spent a day during his presidential campaign in 2007, in which Beck pleads with the President not to let Schwarzenegger cut home care workers’ wages and hours. SEIU also began airing a television ad (see video at top of post) this week in the Los Angeles, Sacramento, and Fresno media markets, which shows presidential candidate Obama with Beck at her client’s home. The ad praises Obama for appreciating the commitment of home care workers to their clients and then challenges Gov. Schwarzenegger as someone who “doesn’t see [elders and people with disabilities] at all.”

Dr. Susan Chapman, associate professor at the University of California—San Francisco Department of Social and Behavioral Sciences, warns that California’s health care workers may be overlooked. “Some of the importance of the home care issue gets lost in the overall picture of California’s giant fiscal crisis,” she told PHI.

She described the plan to take money away from California’s In-Home Supportive Services program as “short-sighted,” since “it may create a situation where more people have to resort to institutional care, which is far more expensive.”

She also said the negative impact on homecare workers themselves may hurt the state’s economy. “These people have to survive, and their wages are already so low that cutting them further will only make these workers more reliant on the state’s support services,” she said. “So for various reasons, it’s not clear at all that the governor’s plan will result in budgetary savings. In fact, it may end up losing money for the state in the long run.”

Hurting the powerless

Bernadette Lynch, president of California Association of Public Authorities for IHSS and executive director for Sacramento County IHSS Public Authority, told PHI the timing of the planned cuts could not be worse.

“IHSS provides services to hundreds of thousands of clients, and the economy is already devastating California’s families, so this isn’t a time to be cutting necessary support systems or reducing those already-small wages,” she said. “The current pay for homecare workers doesn’t even amount to a living wage at this point, except in one or two counties. Reducing it will end up causing a dearth of providers, which will hurt consumers. It’s devastating.”

She continued, “As always, it’s the people who tend to be less heard, who don’t have a voice, who are basically powerless, that will be hurt by this.”

LD1364 is a bill that would standardize the wage rate for all personal assistance workers at a minimum of $12 per hour. Advocates are encouraging the state to use federal stimulus monies to fund the initiative.

Lee’s testimony:

Testimony of Allison Lee,
National Campaign Manager
Health Care for Health Care Workers
PHI

Prepared for the Maine Health and Human Services Committee
April 28, 2009

Thank you for the opportunity to submit testimony in support of LD 1364 – An Act To Stimulate the Economy by Expanding Opportunities for Personal Assistance Workers. PHI is a national non-profit that works to improve the quality of eldercare and disability services through improving the jobs of the direct-care workforce. For the past two years, I have been working with the Maine Direct-Care Coalition on a campaign to secure affordable, quality health care benefits for direct-care workers in the state.

Providing decent paying jobs with benefits is the key to providing quality care for Maine’s most vulnerable citizens. In 2006, according to the Maine Department of Labor, there were 23,182 direct-care workers employed in the state. However, that number underestimates the total number of workers as it does not count many workers who are employed directly by a consumer.

PHI analysis of the Maine occupational projections predicts that positions for personal assistance workers are expected to increase by 45% over the decade ending in 2016. These jobs make the list of the top ten fastest-growing jobs in the Maine economy and also the list of the top ten occupations expected to produce the largest number of annual openings. Yet, indicators show that the workforce is shrinking. In order to meet the growing demand for services, direct-care worker jobs must pay a decent wage to attract new entrants into the workforce.

While real wages for these workers have improved by roughly 4 percent over last decade, they are still under $9/hour. In addition, 40 percent of direct-care workers nationwide live in households that rely on one or more public benefits, such as Medicaid or food stamps, reflecting the heavy public subsidies required to compensate for the low wages and inadequate benefits received by most of these workers.

This predicted occupational growth presents an economic opportunity for the state of Maine. Direct-care worker jobs are the jobs of the future—they can’t be outsourced; they are recession‐proof and they can be powerful economic drivers improving the lives of many low‐income families and spurring community revitalization.

Maine can realize additional economic and social benefits by investing in direct-care jobs—higher tax revenues, reduced reliance on public benefits by direct-care workers, more efficient use of Medicaid and Medicare funds due to lower turnover costs, better retention of workers, and improved quality of care for aging and disabled populations.

LD 1364 is an important investment in a critical workforce. With the increased federal match that will be coming to the state, Maine would be wise to leverage state dollars to make a great impact on a vital economic engine – the direct-care workforce.

Rep. Gwen Moore (D-WI)

Along with many economists and advocacy organizations, Rep.  Gwen Moore (D-WI) wants to see women’s poverty placed at the very top of the nation’s agenda. And she has exerted her political power as a U.S. representative to pursue this goal by advocating for the inclusion of women in President Obama’s economic stimulus package.

Moore’s passion for supporting low-income women is not just political but personal — She was a teenaged mother who lived on government assistance. Now she’s fighting to narrow the wage gap and increase post-secondary education for women on welfare. Thanks to a writeup at WomensEnews.org, we caught wind of the comments she delivered at the Democratic National Convention on women and poverty, and we tracked her down this week as she was on her way to cast votes in the House.

“One of the things I was concerned about when looking at the stimulus package was making sure it does not leave women and children behind,” she said. “I agreed that we needed to rebuild our crumbling infrastructure. Some of the oldest school buildings in the country are in my state. Obama needed to provide tax cuts, but I’m very concerned that many of the jobs — building roads and so forth — were not things women customarily did.”

Moore briefly invoked a comparison between the levels of responsibility shared by a nurse and a bank CEO — and highlighted the stark contrast between their respective levels of pay.

“They have people’s lives in their hands. It’s that nurse and the nurse’s aide who summon the resident from their sleep to let them know if things aren’t going well. If we start paying women comparable to the level of responsibility they have, you’re going to see greater income equality.”

She wants to increase money for food stamps and head start programs, as well as to emergency shelter grants that help women avoid eviction.

When it comes to the stimulus package, she supports the proposed federal aid to state Medicaid programs because she believes it will benefit women living in poverty and expects the savings from the proposed $20 billion for new health care information technology can be used to pay health care workers.

“Education and training dollars are vital and critical for women and children,” said Moore. “We were at risk of creating a permanent underclass because women (on welfare) couldn’t get educational opportunities. I think this is a big ticket item and the package has been calculated and calibrated to produce some results in the next 18 months that people can get their arms around. I think women are going to be huge beneficiaries of that.”

Training, coupled with equal pay for equal work, is what it’s going to take to care for a generation of aging Baby Boomers like her, says the Congresswoman.

“There’s going to be a whole lot of us that are elderly at the same time. It’s going to create a number of jobs. This man (Obama) is serious about it. It’s not just a talking point.”