Basic Workplace Protections Should Be Extended to In-Home Caregivers

How much would you want to be paid to take a job that involved wiping feces from a grown person’s rear end every day, being regularly cussed at by a verbally aggressive client, and having to bathe, groom, and feed someone who could not do those tasks themselves?  Nearly 1.8 million in-home caregivers in the US do these and other tasks every day, yet are not covered by the minimum wage, overtime, and working condition protections of the Fair Labor Standards Act (“FLSA”).  The Obama Administration’s Department of Labor (“DOL”)  has issued a proposed regulation that would finally cover these workers under the FLSA, thereby providing them with fairer wages and working conditions.  Predictably, the home health care industry that is profiting so much off of the recent massive increase of the use of in-home caregiving services is fighting the proposal tooth-and-nail.  Help support the Obama Administration’s proposal by submitting to the DOL a comment in support of the proposal by March 21, 2012, and by writing a supportive letter to your local newspaper editor.

For Winning Progressive, this issue is especially personal.  As our regular readers may recall, my father has had progressively advancing dementia for the past four or so years.  As my Dad’s mental acuity and physical health have declined, we have hired caregivers to assist him with virtually every aspect of daily living.  These caregivers have been absolutely invaluable in my Dad’s life, keeping him not only clean, safe, and well-fed, but also happy, engaged, and content.  In-home caregivers do difficult and largely thankless work.  They should at least receive the same types of workplace protections that most other employees receive under the FLSA.

As the DOL explains, the FLSA was established in 1938 to ensure that workers would be ensured a minimum wage, overtime pay, and certain workplace protections.  In order to get the votes of Southern legislators necessary for passage, however, the original FLSA exempted nearly 80% of workers, including domestic services workers, such as cooks, housekeepers, and gardeners, who are employed directly by the household in which they work.  If those workers were employed by a third party agency, however, they were entitled to FLSA protections.  Congress ended the domestic service workers exemption in 1974, but created a narrow exemption for babysitters and companions for the aged and infirm.  In 1975, the DOL issued regulations extending that narrow exemption not only to companions hired directly by a household, but also by those who are employed by third party home health care agencies that families use to find caregivers.  That regulatory exemption was upheld by the U.S. Supreme Court in the 2007 decision of Long Island Care at Home v. Coke.

The Obama DOL’s proposal would reverse the 1975 regulations and ensure that in-home caregivers hired through home health care agencies are covered by the FLSA.  The proposal would also clarify that the companionship exemption for the aged and infirm is limited to fellowship and protection tasks such as taking walks, visiting friends, or playing cards, and  does not extend to the types of medically-related services that in-home caregivers typically provide.  The result of these changes is that the vast majority of the nearly 1.8 million in-home caregivers in the US would be covered by the FLSA.

The Obama DOL’s proposal is plainly the right thing to do.  There is simply no reason that in-home caregivers should not be entitled to the same workplace protections that virtually all other workers have.   But the proposal has set off a political backlash. One of the biggest home health care agencies – Home Instead Senior Care – reportedly spent more than $360,000 in 2011 fighting efforts to cover their caregivers under the FLSA.  Home Instead is an international corporation that had $685 million in revenue in 2008.  It is part of an industry that a leading investment analyst has described as a “vibrantly-growing, multi-billion dollar segment of the U.S. economy,” and that had a 19.4% profit margin in 2010.  The suggestion that this industry cannot afford to have its caregivers covered under the FLSA would be laughable if it were not so repulsive.

By contrast, the people who would benefit from the proposed rule change are not economically well-off or politically powerful.  As the DOL explains at its blog, Work in Progress:

Many of these workers are the primary breadwinners for their families. Of the roughly 2 million workers who will be affected by this rule, more than 92 percent are women, nearly 50 percent are minorities, and nearly 40 percent rely on public benefits such as Medicaid and food stamps. According to the Bureau of Labor Statistics, home health care aides earn about $21,000 a year and many lack health insurance.

The DOL in-home caregiver proposal is a great example of a comparatively small, but important, step that a Presidential administration can take to make real, positive change in the lives of every day Americans.  Because the people who are benefited by these steps typically lack political power, however, such proposals can often get overwhelmed by focused lobbying by an interested industry that would be impacted.  It is incumbent on all of us to help balance the scales here by speaking up in favor of the Obama DOL’s proposal to ensure that in-home caregivers are covered by the FLSA.  Do so by:

* learning more about the proposal at the DOL’s webpage on the proposed rule

* commenting in favor of the proposed rule by March 21, 2012

* writing a letter to your local newspaper editor in favor of providing in-home caregivers the same protections the rest of us enjoy

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