June 25th marks 75 years since the Fair Labor Standards Act (FLSA) was signed into law by President Franklin D. Roosevelt as part of the New Deal. The law guaranteed workers a minimum wage and overtime pay.
Yet a group of workers who embody a growing industry are still excluded from those protections: home care aides. These workers are excluded thanks to the so-called “companionship exemption.” When the FLSA was expanded in 1974 to cover domestic workers, who were excluded from the original bill, a carve out was added for those who provide “care and fellowship” to the elderly and disabled. That loophole has been so broadly interpreted that when home care worker Evelyn Coke sued her employer for denying her overtime pay, the Supreme Court ruled that her employer’s actions were legal.
In December 2011, President Obama pledged to undo the loophole by introducing a rule to extend the FLSA’s minimum wage and overtime protections to home care workers. But the Department of Labor extended the public comment period on the rule change twice, considering the comments for nearly a year, and while the draft final rule has been sent to the Office of Information and Regulatory Affairs (OIRA), it is unclear when it will actually be finalized. A report from the Coalition for Sensible Safeguards notes that the change “remains stuck down the regulatory ‘rabbit hole’ with no certainty of when it may emerge.” The report also notes that OIRA has had nine meetings on the rule change, four of which were with senior health care companies that are opposed to it.
Some states have changed their labor laws to extend protections to home care workers, but 28 still leave them uncovered.
The lack of labor protections makes it extremely difficult for many of these workers to get by. A report from the Direct Care Alliance documented some of their stories. Laura Lynn Clark, who has cared for a mentally disabled woman for ten years, makes $8.87 an hour and works 199 hours every two weeks because her client needs round-the-clock care. Yet she is not paid overtime. “The work I do is not companionship or babysitting,” she says. “I work very hard for very little money and no health care benefits or vacation days or sick time.” Overtime protection would mean she would be paid for all of the hours she works, which would allow her to finally take a vacation day.
An anonymous worker in Florida works 120 to 160 hours every two weeks. “My husband loads trucks 40 hours a week,” she says. “It takes me almost twice as long to earn what he does. I can work in two weeks what some people work in an entire month.” She started out making $9.50 an hour three years ago and has only seen her pay increase by 50 cents since then. “Sometimes I stay overnight with someone who just needs light care,” she says. “They call that ‘companion care.’ When I do that, I just get $8.00 an hour.”
These are just a sampling of stories from a booming workforce. Nearly 2.5 million people are already employed as home care workers, making up one of the largest occupations, and the number of jobs is expected to grow by 70 percent by 2020. But the wages for these jobs are incredibly low thanks to no guarantee of a minimum wage. Nearly 40 percent of home care 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 would constitute less than one tenth of one percent of the industry’s revenues.