Home Health Care Workers Aren’t Guaranteed Minimum Wage or Overtime, and the Legacies of Slavery and Jim Crow Are the Reason Why

UPDATE (6/29/16): The Supreme Court this week declined to review Home Care Association of America v. Weil, in which the home health care industry challenged the Department of Labor’s extension of minimum wage and overtime protections to home health care workers.

The decision means that some 2 million home health care workers — 90 percent of whom are women and most of whom are women of color — will be entitled to basic wage and overtime protections under the Fair Labor Standards Act of 1938 (although the exclusion of agricultural workers from federal labor protections has yet to be remedied).

On August 21, 2015, The U.S. Court of Appeals for the D.C. Circuit overturned a lower court ruling that had vacated the Department of Labor’s new protections for home health care workers. By declining to hear the case, the Supreme Court upheld the appeals court decision, rejecting a residual legacy of Jim Crow-era lawmaking and putting a long-overdue end to the shameful exclusion of home health care workers from federal protections.

Ever since the New Deal era, U.S. labor laws guaranteeing minimum wages and overtime pay have excluded workers who care for elderly individuals and people with disabilities in their homes. These home health care workers — 90 percent of whom are women and most of whom are women of color — perform strenuous labor for long hours, helping those who need assistance with everything from dressing to meal preparation to eating to going to the bathroom to getting around. To this very day, these workers are denied the basic protections of minimum wages and overtime pay, even as demand for their services grows. They are among the poorest workers in our country, barely getting by on low wages, with 23 percent living below the poverty line.

At the same time, the home health care industry — encompassing more than 80,000 home health care agencies and franchises, including national chains like Brightstar and Right at Home — has benefited from a nearly 80-year-old legal loophole allowing it to pay sub-standard wages. Not surprisingly, its profits have skyrocketed in recent years as the elderly population grows, with a Forbes’ article recently calling home health care franchises among the hottest investments and noting that the number of such franchises has more than quadrupled since 2000.

What most people don’t know is that the exclusion of home health care workers from fair pay is a deliberate and racist wrong that stretches back to Depression-era America, where it was written into our nation’s labor law to accommodate Southern segregationists.

When the Fair Labor Standards Act was enacted as part of the New Deal, it excluded home health care workers, along with other domestic workers, from the otherwise broad guarantees of minimum wages and overtime pay. This exclusion was a legacy of the American original sin of slavery, during which many enslaved African-American women who didn’t work the fields were forced to provide unpaid household care for white families. Following emancipation, in the Jim Crow era, former slaves and their descendants were kept out of good-paying industries through a toxic combination of legal, unofficial, and violent means. Even those who avoided the oppressive sharecropping system were pushed into the worst jobs, becoming bellboys and porters if they were men and domestics in white households if they were women.

Black domestic servant, Atlanta, Georgia, May 1939 (Source: Marion Post Wolcott, New York Public Library, Flickr)

The low value placed on domestic work was also rooted in sex stereotypes that viewed this work as something less than real work, deeming it unworthy of legal protections. These gender norms were racialized: White women were expected to leave the paid workforce upon marriage to care for their own families, while Black women were expected to care for white families for low wages and without protections from abuse, even as they were frequently criticized for neglecting their own children.

When the 1938 Fair Labor Standards Act was passed, guaranteeing minimum wages and standardizing hours, it codified these biases into law. The statute was deliberately interpreted to exclude domestic workers as well as agricultural workers — many of whom were African-American and immigrant men — the very occupations once performed in bondage. It also excluded a range of other predominantly female and non-white occupations, like hotel workers, waitresses, chambermaids, and janitors and nurses in hospitals from its safety net.

The Southern segregationist legislators who controlled many leadership positions in the New Deal Congress, and who voted as a bloc, insisted upon this purposeful exclusion of so many African-American workers, not only from the Fair Labor Standards Act but from the rest of the New Deal’s enactments, including Social Security. There was nothing covert about their aims.

Members of Congress stood up during the debates over the Fair Labor Standards Act to argue that “you cannot prescribe the same wages for the black man as for the white man,” as Democratic Rep. Martin Dies of Texas put it. Rep. J. Mark Wilcox, a Democrat from Florida, cast the matter as one of reality in the South: “You cannot put the Negro and the white man on the same basis and get away with it,” he said. “[I]t just will not work in the South.” The only remotely covert part of the whole sordid deal was the race-neutral language of the legal exclusions themselves — as scholars like Juan Perea and Roy L. Brooks have documented, excluding the occupations where Black Americans were forced to work without mentioning race overtly. By using the well-recognized proxies of agricultural and domestic workers, New Deal legislators were able to garner needed Southern support without alienating northern votes.

What most people don’t know is that the exclusion of home health care workers from fair pay is a deliberate and racist wrong that stretches back to Depression-era America, where it was written into our nation’s labor law to accommodate Southern segregationists.

Despite the use of these barely-coded categories, their meaning was apparent to all. The NAACP, the National Negro Congress, and other groups protested the exclusion of domestic servants and farmworkers from New Deal laws like the Social Security Act and the Fair Labor Standards Act. They pointed out, as the NAACP’s Charles Hamilton Houston testified, that “you will find the majority of Negroes engaged either in farming or else in domestic service,” and thus shut out of the new laws’ protections. But time and again, Congress ignored their testimony and codified the racial exclusions into federal law.

Congress eventually amended the Fair Labor Standards Act in 1974 to bring most domestic workers within its protections, but the law was still interpreted by the Labor Department to exclude most home health care workers. In the decades since then, the home health care industry has exploded into a multi-million-dollar sector. Part of this massive growth is due to the welcome fact that, unlike in decades past, many more people who need care are now living in their homes, rather than in institutions. In addition, the portion of the population that is 65 or older has burgeoned, from 8 percent in 1950 to nearly 13 percent by 2009. Yet the growing workforce providing care is still working under pre-1938 conditions, with no guarantee of minimum pay or overtime.

After years of advocacy by a broad coalition that included worker and civil rights groups, the Department of Labor issued rules in 2013 that would finally bring home health care workers into the economic mainstream and grant them the basic wage protections that most workers take for granted. The rules require workers employed by third-party agencies, which make up the vast majority of the workers in the marketplace, to be paid minimum wages and overtime. They also narrow the definition of the casual babysitters and elder companions who would remain exempt from wage protections.

Early this year, however, a federal judge in the District of Columbia struck down the rules as being beyond the scope of the Labor Department's authority. The ruling was prompted by a legal challenge brought by those who gain the most from the exclusion of home health care workers from wage protections — the home health care industry, represented by their trade associations, the Home Care Association of America, the International Franchise Association, and the National Association for Home Care and Hospice. The industry groups argued, and the federal judge agreed, that the Labor Department lacks the power to eliminate the exemptions for home health care workers, and that any change to the status quo would have to come from further congressional action. The government has appealed, and the federal court of appeals will hear the case, Home Care Association of America v. Weil, on May 7. The ACLU filed a brief joined by many civil rights and women's rights organizations, advocating for the rights of excluded workers.

It was never right to deny predominantly non-white women workers fair wages for the difficult work they do providing care at home. It is certainly not right today. The federal government has finally acted to put a long-overdue end to this shameful legal exemption that the home health care industry has unjustly benefited from. Now it's time for the courts to do the same and stop these firms from profiting from a loophole rooted in the racist legacies of slavery and Jim Crow.