New federal labor rules aimed at home health workers

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Evelyn Coke was a Jamaican-born New Yorker who spent most of her 74 years as a home care aide, working long hours for low wages and no overtime pay. Fed up, she eventually waged a legal battle to secure equitable pay for workers like herself. Coke died in 2009, never seeing the changes she sought. Yet Thursday at the White House, President Barack Obama evoked her memory, while laying out newly proposed rules from the U.S. Department of Labor.

They’re aimed at the 1.8 million in-home care workers nationwide who assist the elderly, disabled and infirm, but don’t qualify for the overtime most employees receive after clocking more than 40 hours.

The President said that’s inexcusable in America.

“Four years ago, a home care worker named Evelyn Coke took her case all the way up to the Supreme Court. And Evelyn was working up to 70 hours a week with no overtime pay,” said Obama. “But the court ruled against her, saying that to change the law would require action from Congress or the Department of Labor.”

While the Fair Labor Standards Act of 1938 provides minimum wage and overtime protections for American workers, employers are not currently required to pay in-home workers minimum wage or any overtime.

That’s because of an exemption that dates back to the 1970s, which classifies such workers as “companions.” As a result, they’re essentially lumped into the same category as teenage babysitters when it comes to how much they make.

Labor officials said changing the existing rules will help ensure that workers like Coke will have basic wage protections.

“The care provided by in-home workers is crucial to the quality of life for many families,” said Secretary of Labor, Hilda Solis. “The vast majority of these workers are women, many of whom serve as the primary breadwinner for their families.”

Indeed, of the nearly two million home care workers nationwide, about 92 percent are women. Of that number, about 30 percent are African-American and 12 percent are Latino/Hispanic, according to labor statistics.

The vast majority are employed by staffing agencies, performing tasks that range from cooking and bathing, to tube feeding and wound care.

“For many seniors, their caregivers are the first person they will see in the morning, and last person they see before they go to sleep,” said Solis.

Thanks to a rapidly aging U.S. population, the increased demand for home care over the last three decades has fueled a multi-billion dollar industry. It employs the largest, fastest-growing workforce in our economy, say experts.

But as the homecare business has changed over the years, labor officials say the law hasn’t kept pace. In light of this changed landscape, the proposed regulation will reconsider whether the current exemption is too broad and home-care workers should be reclassified.

Reaction to the proposal has been mixed. There’s been early favorable reaction from senior advocacy groups like the AARP, while business stakeholders have been more measured. There’s also been critical partisan response.

PHI, a D.C.-based group whose mission includes improving the jobs of home health aides, certified nurse aides and personal care attendants, praised President Obama and the labor department in a statement on its website.

“This administration is sending a strong signal that it recognizes that “care work” is not casual labor,” said PHI President Steven L. Dawson, “but instead one of the fastest-growing occupations in the nation. … We wish Ms. Coke had lived to see this day.”

Joyce Rogers, Senior Vice President for AARP, said the organization looked forward to examining the home care worker proposal.

“As the population rapidly ages, the need for in-home care will only continue to grow,” she said through a spokeswoman. “Services in the home and community are also cost effective – on average, the Medicaid program can provide home and community-based services to three people for the cost of serving one person in a nursing home.”

But some industry stakeholders wondered whether the proposed rules and any new obligation for employers, could ultimately put employees at a disadvantage.

“It’s highly likely that the industry will respond by reducing the working hours for the employees to stay within the limit for 40 hours that qualify for overtime compensation,” said Bill Dombi, Vice-President for Law at The National Association for Home Care & Hospice in D.C. “The primary reason is that these services are paid for either by the elderly or disabled individuals with limited means, or by government programs such as Medicaid that will not accommodate new costs.”

Those payment models for services won’t accommodate higher pricing and higher charging to the consumer to cover the cost of overtime, Dombi said.

“So workers may get a `right’ but not a practical result. … Some of them may need to get additional hours by seeking outside employment.”

Across the country, state regulations vary in terms of whether they extend minimum wage and overtime provisions to home health care workers.

Twenty nine states — including Alabama, Connecticut, Delaware, Florida, Georgia, and Louisiana — do not offer home health care workers minimum wage and overtime provisions. And nearly half of the nation’s home care workers work in these states.

Sixteen states — among them California, Hawaii, Illinois, Maine, Maryland, Nevada, New York and Pennsylvania — extend both minimum wage and overtime coverage to most home health care workers.

Another five states and the District of Columbia extend minimum wage, but not overtime coverage to home care workers. They include Arizona, Nebraska, North Dakota, Ohio, and South Dakota.

Once the proposal is published in the Federal Register, the public has 60 days to submit comments to the Labor Department.

Meanwhile, Ai-Jen Poo, director of the National Domestic Worker Alliance, called the day “historic” for workers like herself who she said bring “dignity and mobility” to millions of Americans. “Our work is finally being recognized.”