Emily puts in long days, often working 16 hours in one day. But she doesn’t get a dime of overtime pay; her employer pays her the same daily rate as if she worked 12 hours no matter how many she actually did. That’s because she’s a home care worker, and under a current loophole called the “companionship exemption,” she and her coworkers aren’t required to be paid overtime or minimum wage.
That was supposed to change this year after the Department of Labor (DOL) issued a rule change that would have closed the loophole. But late on Wednesday evening, U.S. District Judge Richard Leon issued a decision vacating that change. In his decision, he ruled that the DOL doesn’t have the authority to redefine the companionship exemption that has excluded this workforce despite the fact that they perform tasks beyond keeping clients company. He had previously struck down most of the rule, saying that this loophole “is not an open question.”
That doesn’t mean home care workers will never see these basic labor rights, but they won’t have them for now. “It does put the rule change in a state of flux for the next couple of months at least,” Sarah Leberstein, senior staff attorney at the National Employment Law Project, told ThinkProgress. The DOL is expected to appeal Leon’s decision, which she said “could take a matter of months, or it could take a little longer.” She expects that an appeal will succeed in the end, given that the Supreme Court ruled in the previous case Long Island Home Care v. Evelyn Coke that the DOL has wide discretion in defining what companionship means.
Until then, home care workers wait. There is even more confusion given that Leberstein says that no one quite knows whether Leon’s decision applies across the country or just in his DC circuit. But if it applies everywhere, minimum wage and overtime protections don’t exist for this workforce.
Leon’s ruling came as a real blow to Emily, who is a member of the National Domestic Workers Alliance. “We were already counting on that overtime pay, that it could be implemented and we could be enjoying our hard-earned money,” she said. And she had strong words for him. “He doesn’t even know what our work means,” she said. “I would ask him to try being a home care worker for even a week and let’s see if he wouldn’t change his mind by saying we’re just providing companionship to the patient or the client.”
As a live-in home aid, she gets paid $135 a day, which comes out to $11.25 an hour. Median wages for the industry are under $10 an hour, a figure that has actually declined over recent years. And the work is tough. Her clients are usually stroke patients, the elderly, and even the blind. “We do almost everything for them,” she said, including bathing them, carrying them from their beds to other areas of the house, preparing their medications, dressing them, and even changing diapers for those who are incontinent, as well as whatever else needs doing, like housekeeping and caring for pets. “We work really hard. We don’t just sit down. We do hard work, and for me it’s not fair that we don’t get overtime pay like others,” she said.
For all that hard work, she still has a hard time financially. “I can hardly make ends meet,” she said. She pays $500 to rent a room and even has to pay for her own transportation, plus she tries to send money back to her children in her native country every month. Getting overtime would have improved the picture. “It would really change a lot,” she said. “It would be a big help to us, cover your food or your bills.”
She’s not alone in struggling to cover all of her costs. Particularly because they aren’t guaranteed to make at least the minimum wage, nearly 40 percent of the workforce makes so little it has to turn to public benefits.
Her voice breaking just a little, Emily insisted that she and her fellow home care workers deserve more. “For me it’s fair that we should get [overtime] like any other people working,” she said.