On Monday, U.S. District Judge Richard Leon struck down a rule change issued by the Department of Labor that would have extended minimum wage and overtime pay protections to home care workers come January.
In 1974, the Fair Labor Standards Act (FLSA) — the law requires American employers to pay their workers at least the minimum wage and extra pay for overtime hours — was expanded to cover domestic workers. Yet a carve-out was included for those who provide “care and fellowship” to the elderly and disabled in their homes. That exemption became so broadly interpreted as to deny basic labor rights from those who feed, clothe, and bathe clients, as well as give them medical care. In 2007, under that law, the Supreme Court ruled that a woman named Evelyn Coke’s employer, who had her work long hours giving care, did nothing illegal by failing to give her overtime pay.
Judge Leon’s decision said that the rule change issued last year conflicted with this 40-year exemption. He wrote that this loophole “is not an open question” that the Labor Department can “effectively rewrite…out of the law,” calling the change a “thinly-veiled effort to do through regulation what could not be done through legislation.”
Under his ruling, home care workers who are employed by agencies and other third-party employers can still be denied the minimum wage and overtime pay if they provide primarily “fellowship and protection” rather than more in-depth care. Workers who are employed by agencies and live in their clients’ homes can also be denied overtime.
The decision sides with Home Care Associates, the International Franchise Association, and the National Association for Home Care & Hospice, which sued the Department of Labor, saying the rule change would have a “destabilizing impact” on the industry.
Home care workers occupy one of the fastest-growing industries yet are also among the lowest paid. Their median wage was $9.67 last year, or just over $20,000 a year, a figure that represents a 5 percent decline since 2003 when adjusted for inflation. Because they aren’t guaranteed the federal minimum wage of $7.25, many make poverty wages: nearly a third of New York City aides make less than $15,000 a year. Nearly 40 percent of the workforce makes so little that they turn to public benefits to get by.
Even minimum wage may not be enough for these workers to support themselves. They have recently joined the movement for a $15 an hour wage that was begun by fast food workers.
Their work can also be grueling and constant. Laura Lynn Clark, who has cared for a mentally disabled client for ten years, makes $8.87 an hour and though she works 199 hours every two weeks giving around-the-clock care, doesn’t get any overtime pay. “The work I do is not companionship or babysitting,” she says.
Nearly 2.5 million people do this work, making it one of the largest occupations. The number of these jobs is expected to grow by 70 percent by 2020. But even with that growth, demand for home health care is expected to outpace supply over the next decade. Better pay and protections could make it a more attractive job.
Labor officials aren’t sure how many home care workers will still be eligible for minimum wage and overtime once the new rules go into effect, as other challenges to the rule change are still pending. The Department of Labor is considering an appeal of Leon’s ruling.