(WOMENSENEWS)– A U.S. District court in Washington, D.C., will rule any day on an appeal from the Department of Labor in a case of great importance for the rapidly expanding ranks of homecare workers.
These workers–home health aides and personal care aides who are about 90 percent female–often live with the elderly or disabled people they assist and perform tasks such as bathing, dressing, cooking, cleaning and help getting around.
Under a 2013 expansion of the Fair Labor Standards Act they were scheduled to become eligible in January for many basic labor rights including overtime pay and minimum wage. It’s an important issue because as labor activists push nationwide for a higher minimum wage, these workers risk losing out and falling further behind.
But just before the law could take effect, three for-profit homecare trade groups– the Home Care Association of America, the International Franchise Association and the National Association for Home Care and Hospice–successfully sued the Department of Labor, saying Congress hadn’t granted it the authority to re-define a longstanding exemption in the labor law that prevented homecare workers from enjoying labor protections.
The Paraprofessional Healthcare Institute, located in New York, predicts that by 2020 the direct care workforce will reach have grown to over 5 million and be the nation’s largest occupational group. However, according to the institute, only 40 percent of homecare workers–a huge portion of those providing "direct care"– are employed full-time and earn an average annual income of $13,000.
Abby Marquardt, director of policy research at the Paraprofessional Healthcare Institute, says her group and other advocacies have been urging the Labor Department for more than a decade to expand federal labor protections to homecare workers. They argue that the poverty-level wages hurts the workers and the quality of care they are able to provide.
"It’s a sense of urgency so workers can be paid fairly and consumers can maintain the services they need," she says.
Sarah Leberstein, senior staff attorney at the National Employment Law Project, has reason to hope the court will uphold the new labor-law protections. She cites a 2007 Supreme Court case–Long Island Care at Home v. Coke–in which justices found that the Department of Labor had very broad power to define and limit the exemption in the labor law at the heart of the legal battle.
"As far as the legal issue goes, the DOL is definitely on very sound footing," she says.
The National Employment Law Project estimates 2 million homecare workers are currently excluded from the basic minimum wage and overtime protections of the Fair Labor Standards Act.
As more of the aging U.S. population seeks to avoid nursing homes, homecare workers are at the center of a huge caretaking shift.
Caitlin Connolly coordinates the Home Care Fair Pay campaign from the Washington, D.C., office of the New York-based National Employment Law Project. She says homecare workers are saving states and the federal government billions of dollars every year. "Instead of going into institutions, people are getting care at home, which can be argued as less expensive. So how do we quantifiably show homecare workers they are important to the long term homecare system?"
Connolly and others say the answer is to provide basic labor rights.
The exclusion of homecare workers from labor protections dates to the 1930s when the Fair Labor Standards Act was enacted. The law did not apply to certain workers, including domestic workers, who were defined as anyone whose workplace was in someone’s home.
Historically, domestic work was not considered the kind of "real" work that merited labor law attention. Many of those trying to extend the labor protections today argue that because domestic work was traditionally work done by women and people of color the exemption is rooted in racism and sexism.
"It was a legacy of slavery," writes Ariela Migdal, senior staff attorney at the ACLU Women’s Rights Project, on the ACLU blog, "during which enslaved African-American women provided household care, and the Jim Crow era, when African-American women continued to provide domestic service to white families at poverty wages."
To address this criticism, lawmakers revised the law in 1974 to include such categories of domestic workers as housekeepers, full-time nannies, chauffeurs and cleaners. But home health aides and personal care aides work–the two groups now known as homecare workers–were categorized as "companionship workers" and, as such, remained exempt from the Fair Labor Standards Act.
Given the explosion of demand for homecare workers–just 2 percent of older adults live in institutional settings, according to a 2014 report by the nonprofit American Association of Retired Persons– Connolly, of the National Employment Law Project, says the companionship exception is outdated.
"The homecare industry is booming," says Connolly. "These are some of the fastest growing jobs and in demand jobs. These workers are no longer a casual position. This is real work. It’s very difficult work."
As workers and advocates wait for a court ruling on federal law, Elly Kugler, staff attorney at National Domestic Workers Alliance, says her group continues fighting on a state-by-state basis to create bills of rights for home care workers with an eye to laying the groundwork for a law at the federal level.
"Each bill of rights was about making an argument that all domestic workers’ lives should be improved," said Kugler, in a recent phone interview. "So it’s clearly feasible because some states are already doing it."
More than 20 states have some kind of minimum wage and-or overtime protections in place for homecare workers, according to the Paraprofessional Healthcare Institute.
But states such as Texas–where the direct care workforce is about 75 percent homecare workers–still have no baseline for pay.
Kugler points to California as a model for homecare rights. Unions, domestic worker groups and consumer groups recently organized and restored funding that had been cut for state’s publicly funded homecare system.
Last month Massachusetts’ homecare workers became the first in the nation to win a $15 minimum wage after joining the Fight for $15 campaign.
Marquard, director of policy research at the Paraprofessional Healthcare Institute, says even if the
district court ruling is favorable to workers, the fight does not end there. It will take an effort, she says, to make sure there is money in the system to pay home care workers. While some homecare workers are paid privately–through for-profit homecare providers–many are paid with public funding, through state-funded programs or Medicaid.
If states are required to pay minimum wage and overtime, there is a concern that they may consider cutting back on homecare jobs. Marquard says that means the next step is pushing states to instead increase their Medicaid budgets.
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