Tuesday marks six years since the U.S. Supreme Court decision in Long Island Home Care v. Evelyn Coke in which the Court ruled that Coke, a home care worker, was not covered by the Fair Labor Standards Act (FLSA) due to the so-called “companionship exemption.” While Coke passed away four years ago, today’s home care workers are still waiting on a promised resolution to this loophole in labor law.
Coke sued her employer for back pay when she discovered that she had never received overtime despite working long hours. The case went to the Supreme Court, which ruled on June 11, 2007 that her employer’s actions were legal thanks to an exemption in the FLSA for those who provide “companionship services” to the elderly or those with disabilities. Yet the court also ruled that the Department of Labor (DOL) could revisit the companionship exemption to bring home care workers under the protections of labor laws.
In December 2011, President Obama promised to have the department do just that. He introduced a new rule that would extend the FSLA’s federal minimum wage and overtime protections to those who provide the elderly and disabled with home-based care.
Yet the DOL has extended the public comment period on the proposed rule change twice. Its draft final rule has been sent to the Office of Information and Regulatory Affairs, but it is unclear when it will actually be finalized.
In the meantime, many home care workers make below minimum wage and aren’t paid overtime, even if they live with their clients. While some states have changed their labor laws to cover home care workers, 28 still leave these workers uncovered. Without the guarantee of a minimum wage and overtime pay, nearly 40 percent of these workers make so little that they turn to public benefits such as food stamps or Medicaid to get by.
Meanwhile, the Department of Labor has estimated that the cost of paying home care workers minimum wages and overtime pay would constitute less than one tenth of one percent of the industry’s revenues. The demand for these workers is projected to outpace supply over the next decade, and paying them better could help reduce turnover and attract new workers to the field.