Protections for Home Care Workers: Ending An Unjust Legacy

"Year in and year out, Evelyn Coke left her Queens house early to go to the homes of elderly, sick, often dying people. She bathed them, cooked for them, helped them dress and monitored their medications. She sometimes worked three consecutive 24-hour shifts. She sometimes worked 70 hours a week. She loved the work, but she earned only around $7 an hour and got no overtime pay…”

Though this New York Times’ obituary tells the story of one woman’s life, it illuminates some of what life is like for the approximately two million home care workers. Last week, a much-needed advancement began to move forward for these workers. The Obama administration proposed new regulations that, if adopted, would extend minimum wage and overtime protections to approximately two million home care workers.

These workers, 90 percent of whom are women and nearly 50 percent people of color, have been denied basic labor protections for decades under a misplaced exemption. As the Department of Labor’s Wage and Hour Division explains:

While Congress expanded protections [under the Fair Labor Standards Act] to “domestic service” workers in 1974, these Amendments also created a limited exemption from both the minimum wage and overtime pay requirements of the Act for casual babysitters and companions for the aged and infirm, and created an exemption from the overtime pay requirement only for live-in domestic workers.

In 1975, the Department of Labor created regulations to implement the amended the Fair Labor Standards Act (FLSA), which determined that home care was “companionship” work not subject to minimum wage and overtime rules, even if performed as a full-time vocation or for a third party employer otherwise covered by the FLSA. However, according to Secretary of Labor Hilda Solis, this exemption was originally intended by lawmakers to apply only to people who were casual companions, not workers employed as professional caregivers. Moreover, this was promulgated prior to the beginning of a dramatic rise in demand for privately-employed home health care aides.

The ACLU has long advocated for a change in this coverage. Last spring we urged the Department of Labor to revise these companionship exemption regulations. The Department of Labor’s new proposed regulation would make strides toward correcting an injustice that has left many hundreds of thousands of hard-working care providers and their families with less than they deserve. The new rule would:

• Clarify that professions including nanny, home health aide, and personal care aide are covered by minimum wage and overtime rules, as are all workers who provide skilled medical care or perform housekeeping functions for the benefit of others besides the person in need of companionship;
• Ensure that all domestic service workers, including live-in employees, who are employed by third-party agencies receive minimum wage and overtime pay;
• Describe in more precise detail what is meant by “companionship” work exempted from pay protections; and
• Require the keeping of records of hours worked by live-in domestic service employees in order to ensure that they are paid fairly for the time they actually spend on the job.

The exemption of home health care workers from labor rights laws was the subject of Evelyn Coke’s bitterly contested Supreme Court case, Long Island Care at Home v. Coke. In 2002, she filed suit against her employer, Long Island Care at Home, Ltd. and its owner, alleging that she was not paid minimum wages and overtime wages to which she was entitled under the FLSA and a New York statute, and she sought a judgment for those unpaid wages.

The ACLU signed a friend-of-the-Court brief that made the case that the exemption of home care workers was the legacy of the deliberate exclusion of many African American workers from the FLSA’s coverage when it was passed in 1938. At its inception, the FLSA was the product of a political compromise, which served in essence, to preserve racial stratification, by excluding agricultural and domestic workers. The Supreme Court, however, upheld the Department of Labor’s regulation holding that “companionship” workers employed by an outside agency fell within the FLSA’s exemptions.

Despite this ruling, the ACLU has argued that the denial of American labor protections to caregivers who work in the home is a vestige of the legacy of slavery, Jim Crow, and the devaluation of women’s work as “personal,” and not commercial. The proposed regulations take important steps towards eradicating the legacy of that shameful framework.

The ACLU is pleased to stand with the Department of Labor in advocating minimum wages and overtime pay for more workers. We hope that that this loophole will be closed soon and home care providers, the people upon whom so many of us rely, will soon have the protections they deserve.

- Deborah J. Vagins, Washington Legislative Office, and Ariela Migdal, Women's Rights Project

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