By Agata Pelka, Fellow, National Women’s Law Center
Thursday morning, the D.C. Circuit heard oral arguments in Home Care Association of America vs. Weil, the Department of Labor’s appeal of a district court decision vacating central provisions of new regulations extending basic protections under the Fair Labor Standards Act (FLSA)—like minimum wage and overtime pay—to nearly two million home care workers.
Shortly after the arguments, workers and advocates gathered on the front steps of the courthouse for a press conference to put the case in context and to bring forward the stories of the workers and the families seeking home care who will be affected by the case. Workers spoke about the struggle to care for their patients while barely being able to make ends meet for their own families. Wages in the field are low: one quarter of workers are paid below the federal minimum wage, and the median wage is below $10 an hour. On top of that, home care workers are not ensured overtime pay like other hourly workers under the FLSA. Paula Wilson, a home care worker, spoke about the close relationships she forms with her consumers, and how she will often stay longer with them when they are going through periods of stress or aggravated illness but will not be compensated for that time. She emphasized that home care is not a profession where you can just clock out at the end of the day—but that the current system exploits workers for their compassion, instead of fairly compensating them for improving the quality of care that patients receive.
The need for home health care is growing as the U.S. population ages. Karen Marshall, a family caregiver who saw both of her parents through terminal illnesses, detailed the amazing experience she and her parents had with their home care workers. She underscored that knowing her parents were being well taken care of, by individuals they trusted and felt comfortable with, allowed her to continue working. But if conditions for home care workers do not improve, it will be increasingly difficult to ensure such quality care due to the high rate of turnover in the profession as workers seek out other fields with better pay and overtime protections.
Advocates at the press conference were clear that the home care exemption stemmed from a systematic devaluation of what is considered women’s work in society, and in particular the work of women of color. Nearly 90 percent of home care workers are women, almost 60 percent of which are women of color. Ariela Migdal from the ACLU spoke about how the exclusion of home care workers from FLSA, which the DOL regulations were meant to address, was a result of the legacy of the Jim Crow era. She explained that legislators in 1938 used “the coded language of domestic and agriculture work to carve out exceptions for work that used to be done by slaves,” and then by former slaves and their descendants for very low compensation, to garner support for FLSA from Southern Congressmen. Since then, Congress has brought many domestic workers under the protection of FLSA in 1974, but home health care workers continue to be excluded.
The Department of Labor took an important step to improve those conditions when it properly extended FLSA coverage to the home care workforce, correcting an unfair exemption that has deprived millions of workers of the most basic federal labor protections. The ruling from the D.C. Circuit should uphold the Department’s rule and affirm that care work is real work—and it must be properly compensated.