Justice Begins at Home: Extending FLSA Protections to Home Care Workers

By Lauren French

The U.S. Department of Labor recently announced that it would be extending the Fair Labor Standards Act's minimum wage and overtime protections to workers who provide home care assistance to older adults and those with illness, injury or disability. This was welcome news for the nearly two million home workers who have long been denied these basic protections that most U.S. workers already enjoy.

To explain how this new rule would be implemented, the National Employment Law Project (NELP) hosted a webinar on December 3 featuring experts in the areas of home care work, employment law, and Medicare programs. The panelists discussed the details of implementing the new regulation and the ways in which it would affect workers and employers.

Cathy Ruckelshaus, General Counsel & Program Director of NELP, explained the history of the so-called companionship exemption. When Congress extended coverage of the Fair Labor Standards Act to domestic services workers in 1974 it created limited exceptions for casual baby sitters and workers providing companionship services for the elderly. However, Department of Labor regulations issued under the law defined the term "companionship services" very broadly to include workers such as certified nursing assistants and health aids.

The new rules make two main changes to the treatment of homecare workers under the FLSA, as NELP staff attorney Sarah Leberstein explained. First, workers who are employed by a third party will be covered by minimum wage and overtime laws. Therefore, home care agencies and state entities will no longer be able to claim the exemption. Second, the type of work that is exempted will be much narrower. The final rule defines "companionship services" as the provision of fellowship and protection, meaning activities such as "conversation, reading, games, crafts, and accompanying the person on walks, on errands, to appointments, or to social events." Workers who provide medically related services or spend 20 percent or more of their time providing assistance with daily living activities such as dressing, meal preparation, or housework will not be exempted.

This rule change is essential to our current workforce because the number of home care workers needed in the United States is expected to dramatically increase. The Bureau of Labor Statistics predicts that personal care aides and home health aides will be the fastest growing occupations between 2010 and 2020. Abby Marquand, Director of Policy Research at The Paraprofessional Healthcare Institute, explains that this predicted growth is driven by the aging of the population, as well as patients' preferences for home care over institutional care. Despite the need for home care workers, wages have not reflected the increase in demand: over half of home care workers have incomes that fall below 200 percent of the federal poverty level.

Importantly, the extension of these protections to home care workers at the state level has not been shown to have adverse consequences for the home care industry. Michigan, for example, experienced growth in the number of health care establishments in the five years after extending minimum wage and overtime protections to those workers. Tracy Dudzinski, worker-owner of Cooperative Care in Wisconsin, reiterated the economic feasibility of the new rule, stating, "You can run a profitable home care business that provides quality care and pay your workers overtime and minimum wage. We do it every day at our company."

For more information on the rule change, please visit the following resources:

- See more at: http://clasp-archive.bytrilogy.com/issues/pages?type=work_life_and_job_quality&id=0048#sthash.FTnfP2zz.dpuf

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