By Caitlin Connolly, National Employment Law Project
In an order issued yesterday morning, the Supreme Court of the United States declined to hear the case of Home Care Association of America v. Weil, closing the door on the industry’s and for-profit companies’ last-ditch attempt to prevent home care workers from keeping their newly-won right to the minimum wage and overtime pay.
While many may assume that these basic rights are guaranteed, our nation’s two million home care workers were long denied these federal protections. The reason why harks back to our shameful history of segregation. When FDR sought support in Congress for the New Deal’s Fair Labor Standards Act (FLSA), he compromised with southern segregationists who refused to give black and white workers the same wage. As a result, domestic and agricultural workers, almost all black in Jim Crow America, were exempted from the law.
Congress attempted to address that injustice in 1974 through an amendment to extend FLSA protections to most domestic workers, but its amendment included an exception for “companionship” workers—a category that, in time, came to swallow up virtually the entire burgeoning home care workforce. After a lengthy and deliberative public input process, the U.S. Labor Department issued a rules reform in 2013 (with a January 1, 2015 effective date) to clarify that Congress meant to include professional home care workers in the FLSA and close that loophole. The Court’s decision yesterday to not hear the industry’s appeal of a federal appeals court decision upholding the Labor Department rules marks a victory for workers and brings this shameful policy to an end.
It is now time for all employers and states to fulfill the rule’s promise to raise worker standards. Since 2015, home care workers have been eligible for at least the minimum wage, overtime, and intra-day travel-time pay under federal law. Many employers have fulfilled their legal and moral responsibility to workers. As Karen Kulp, president and CEO of Philadelphia’s worker-owned home health care company, Home Care Associates, noted, “As an employer, I believe paying minimum wage and overtime is not only the right thing to do, it is smart business…. Eliminating the companionship exemption evens the playing field for those employers who were doing the right thing already.” Ms. Kulp noted that improving the quality of the jobs reduces very costly turnover.
Because public dollars fund the majority of home care services, states have an especially critical role in ensuring that Medicaid-funded home care workers benefit from these new rules, and setting the industry on a path towards compliance. Some states and employers have already done a good job at implementing the regulations.
For several months, California has been paying workers in the state’s Medicaid program for all of their work hours, including time spent traveling between clients’ homes, and an overtime premium for hours worked over 40 in a week. The state has created a reasonable cap on the number of hours workers can work in a week (66-70 hours) and provides an exceptions process that allows for individuals who are at risk of institutionalization to seek an exception to the hours cap. One California home care worker, Lisa Scott, said that being paid for all hours worked means that she can now save up for a trip to see her grandchildren.
Massachusetts is also fully complying with the home care rules by paying for overtime and travel time. Home care worker Elizabeth Morgan said that better working conditions and overtime pay help to keep people in the field. A personal care attendant for 25 years, she said career PCAs like herself are few and far between.
More states, such as Florida, New York, Oregon, Washington, and others, are taking meaningful steps to implement the rules and to improve the working conditions of one of the fastest-growing occupations. They are already well along the way towards strengthening this workforce, which is imperative to meet America’s growing demand for in-home services and supports. With 9 out of 10 people wanting to remain at home, not investing in this workforce is short-sighted and irresponsible.
And contrary to what the plaintiffs claim, for-profit franchise home care agencies, which often see 30 to 40 percent profit margins, can afford to ensure their employees are provided these basic labor protections.
The Supreme Court’s closure of this case marks the end of a racist and sexist policy that, for decades, stole wages from our nation’s home care workers. NELP is proud to have been a part of righting this wrong.
It’s time for states and employers to treat home care workers with the dignity and respect they deserve and uphold the rights of individuals to live as independently as possible; they can consult the U.S. Labor Department for technical assistance and resources for consumers and families. And it’s time for communities to come together to promote policies that support workers, consumers, and families. We stand ready to serve as a resource.