Home care workers’ long march to justice

The Hill
Christine Owens
July 1, 2016

A long journey along a circuitous path has finally ended in justice for the nation’s home care workers: the Supreme Court this week declined to review a 2013 Labor Department rule that extends minimum wage and overtime pay rights to two million caregivers who provide supports and services to the elderly and people with disabilities. For the first time since the Department wrongfully excluded them from Fair Labor Standards Act (FLSA) coverage in 1975, home care workers—mostly low-income women, the majority women of color—have firm assurance that the law is on their side and that they are entitled to the federal fair-pay guarantees most U.S. workers take for granted.

Justice has long been denied these caregivers, whose work enables the elderly and people with disabilities to avoid institutionalization and live as independently as possible.  After Congress extended the FLSA to workers in domestic service in 1974, the Labor Department interpreted the law’s narrow “companionship” exemption expansively to deny coverage to caregivers who provide home-based services, even though they would have enjoyed full FLSA protections had they performed the same work in nursing homes or similar institutions.  Subsequent attempts to fix the rule through regulation or litigation foundered amidst the industry’s relentless lobbying to maintain the status quo.  Indeed, even after the Department revised the rules in 2013, industry twice asked the Supreme Court to turn back the clock and repeal the rights that home care workers had finally won—requests that the Court has now twice refused.

The effects of the updated companionship rules are important and already being felt, as states have begun to implement the new wage standards even in the face of continued industry opposition and uncertainty about potential Supreme Court action. California, Florida, Massachusetts, New York, Oregon, Pennsylvania, Washington, and other states have budgeted funds to comply with the new rules. In California, for example, the 376,000 workers in the state’s In-Home Supportive Services (IHSS) program are now paid for weekly overtime and for travel time between consumers. Higher wages and greater predictability in hours will better enable workers to make ends meet. With wages rising, turnover will fall; and with more continuity and stability of the workforce, the quality of services caregivers provide will improve.  

Harder to quantify but nevertheless important is the measure of dignity and decency conveyed by the Court’s affirmation of the Department’s rules.  The work of providing supports and services to those we love is no less valuable simply because it is provided in their homes—if anything, the security and independence home care makes possible, and the reassurance it provides all of us who benefit directly or indirectly from it, makes the work of home caregivers all the more valuable to the individuals and families it helps sustain. 

The decision is important for another reason too.  Home care has changed dramatically over the past four decades.  Between 1975 and 2009, there was a roughly five-fold increase in the number of Medicare-certified home care agencies and home care workers. And with the aging of baby boomers, home care is one of the occupations that will grow the most and the fastest in coming years.  In updating the companionship rules to reflect these realities, the Labor Department has affirmatively demonstrated that our basic workplace protections can be adapted to labor market and economic changes. The rules are thus an important bellwether for how the “future of work” can align with core labor protections to make sure all workers receive what work ought to provide: adequate earnings in safe and healthy workplaces that enable us to thrive and build for tomorrow. 

The Court’s decision today, alone, will not transform home care jobs into the good jobs we need to prepare for a rapidly aging population, but ensuring home care workers’ right to the federal minimum wage and an overtime premium is the necessary precursor to securing the high-quality, affordable home-based care system that both workers and consumers so desperately need. The decision is a momentous victory, a reaffirmation of the value of work, and a tribute to the endurance and resilience of caregivers, who refused to give up on their fight for simple justice.

Christine Owens is executive director with the National Employment Law Project.