As the presidential election absorbs our attention, one policy proposal that might get lost in the shuffle is a proposed rule change that would mandate minimum wage and overtime pay protections for home care aides — the workers who provide elders and people with disabilities with the assistance they need to stay at home.
You might wonder how, in 2012, a group of workers could be denied the labor protections we have come to expect — a group of workers who make up the fastest-growing occupation in the country, according to recent predictions by the Bureau of Labor Statistics, and on whom we are growing ever more dependent with our rapidly aging population.
Here is how it happened: The Fair Labor Standards Act was the law that first brought us wage and overtime protections. But back in 1938 when it passed, many jobs held primarily by women were not covered. So in 1974, the act was amended by Congress to include domestic workers — such as maids and cooks — but people providing “companionship” were excluded.
At the time, the Department of Labor, charged with writing regulations to implement the new law, interpreted the “companionship exemption” quite broadly. The intention of Congress had been to exempt the babysitter or neighbor who provided occasional support, but the labor department chose to also include professional home care aides, employed by third-party agencies, under the exemption umbrella.
The services provided by home care aides are essential for people needing personal assistance. The number of people projected to need such services is expected to double in the first half of this century from 13 million individuals in 2000 to 27 million in 2050, a consequence of our aging population.
The companionship exemption came to the public’s attention five years ago when a home care worker named Evelyn Coke sued her employing home care agency for not paying her overtime. Coke was a single mother of five who worked for decades providing care for others. She earned about $7 an hour and received no overtime pay, even when she worked up to 70 hours per week, sometimes putting in three consecutive 24-hour shifts. In 2001, at age 66, Coke was hit by a car and saw a lawyer due to the resulting injuries that left her unable to continue to do her job. After examining her pay stubs and realizing she had never received overtime for her long hours, her lawyer invited her to bring a test case against her employer.
The Supreme Court heard the case in 2007 and ultimately ruled that the exemption was valid, suggesting it was not the court’s role to change the law but rather that any change needed to come from the Department of Labor or Congress. Happily for home care workers, four years later, in 2011, the labor department under the Obama administration did just that by proposing a new rule eliminating the exemption. Sadly Coke died before the rule was announced. She was too poor in her final months to afford the home care she needed to prevent bed sores that ultimately contributed to her deteriorating condition, a sad and ironic situation given her own life’s work helping others with bed sores.
Maine is one of 15 states that has its own wage and overtime protections for home care workers; five others have wage but no overtime protections. We should be proud of that status. Nevertheless, the average wage of personal care workers in Maine is only about $10 per hour, and few workers have regular full-time employment. About half of all home care workers receive some sort of public assistance due to the low wages and irregular hours. Many workers are single mothers trying to support families and who, despite loving the work, eventually are forced to leave to find work with higher wages, benefits and more consistent hours.
Turnover rates for home care workers range from 40 to 65 percent annually, meaning our elders are faced with inconsistent care and sometimes no care at all. Removing the companionship exemption might not directly raise the wages of Maine workers, but it would make the statement that policymakers believe the work of home care aides should be adequately compensated.
The proposed rule to eliminate the companionship exemption received 26,000 comments during the public comment period, of which two-thirds were in favor. Large profitable home care companies were those least likely to support the rule. The Department of Labor should release the final rule as soon as possible to avoid risking a repeat of what happened in 2000 when a similar rule proposed under President Bill Clinton was rolled back by the incoming Bush administration.
Home care workers such as Coke deserve such protections in the 30 states that do not currently have them, and home care workers in Maine and across the country need to know that their essential work is valued and seen as deserving of the protections other workers take for granted.
Sandy Butler is a professor at the School of Social Work at the University of Maine who recently completed a four-year study about the experiences of home care workers in Maine. She is a member of the Maine Regional Network, part of the Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications. Members’ columns appear in the BDN every other week.