The front line of today’s labor struggles isn’t the factory floor but the kitchen table: many of the most vocal labor campaigns came from the home healthcare workers who support people with disabilities and seniors. These professional carers have joined in the “Fight for 15” protests, led union organizing campaigns and scored a major win in Washington with an expansion of federal labor protections to home healthcare jobs. But the movement for labor rights at home got thwarted in court this month. A federal judge ruled against the pending regulation, deciding that the Obama administration had overstepped its authority when the Department of Labor extended minimum wage and overtime standards to homecare workers hired by private agencies.
The ruling by the Washington, DC, district court vacates a specific provision that would broadly expand protections of the Fair Labor Standards Act (FLSA) to workers hired by “third-party” employers to serve private households. Though the key expansions of the rule remain intact, the legal snafu indicates the complexity of securing even the most basic rights for this historically marginalized sector.
The new federal regulation would close a loophole in the FLSA that exempted “companionship” workers, who provide basic support services to seniors and the infirm. An earlier Supreme Court ruling effectively left it up to the Labor Department to clarify which homecare or direct-care workers are entitled to minimum wage and overtime standards. An extensive rulemaking process subsequently led to the new regulation that built on the demands of a coalition of labor, community and healthcare advocacy groups.
But the district court sided with industry groups, including the Home Care Association and International Franchise Association, which argued the rule change was an overreach that circumvented congressional authority. The judge also warned that the rules, as written, would “have a destabilizing impact on the entire home care industry,” and services would suffer.
But to homecare workers, the regulations represent a long-overdue step toward equity for a labor force fraught with poverty wages and harsh working conditions. Contrary to the stereotype that homecare workers are acting merely as “elder sitters,” today’s homecare aides, according to the National Employment Law Project (NELP), take on specialized tasks like “medication management, range-of-motion exercises, blood pressure readings, vital signs monitoring, and routine skin and back care.” The Obama administration’s rulemaking was designed to make federal regulations reflect the seriousness of their work.
While the court’s ruling does interfere technically with the third-party provision, the new rules are largely still set to go into effect on January 1. The Labor Department told BusinessWeek that it “strongly disagrees with the district court’s opinion.” Meanwhile, the court’s decision will likely have little impact in practical terms, because the other provisions of the regulation ensure that workers with third-party employers still qualify for overtime and minimum wage as long as they are performing serious care duties that are more extensive than just “companionship,” as defined by the Labor Department.
The new regulation could affect about 2 million workers, and will build upon numerous state laws that already ensure state-level wage and hour standards, which in some cases are more stringent than the FLSA. In Illinois, for example, homecare workers are covered by the state’s $8.25 minimum wage standard as well as overtime rules for work weeks exceeding forty hours.
There is a sixty-day window for appeal, and it’s unclear what further litigation might emerge. But regardless, the core of the rulemaking will go forward. To actually avoid the new regulations, NELP General Counsel Catherine Ruckelshaus tells The Nation, “a third-party agency still has to prove that the worker isn’t performing covered duties in order to take the exemption. So most workers are still going to be covered.”
But the deeper political debate will continue over the role of the government in regulating the domestic work sector.
In NELP’s view, the industry’s attempt to thwart the White House’s reform reflected an ideological resistance to state regulation, rather than concern over the potential impact on businesses, particularly given the fact that many homecare agencies are already complying with state labor laws.
“The for-profit agencies and the International Franchise Association have just been against these rules from the beginning, and they’re doing everything they can to try to block them, and this is one example.”
The entire history of the federal labor law regime, in fact, is one of excluding certain groups of workers deemed to be undeserving of social protection. Originally, both domestic workers and home health aides were shut out of minimum wage laws. Forty years ago Congress moved to broaden the law to cover domestic workers, but left the companionship exemption. The historical barriers are interwoven with deep patterns of gender and racial bias: “hired help” was typically done by poor women of color and was considered separate from “real” waged work. Today, sadly, that framework persists, and the district court ruling reflects the stereotype of a mere “companion” hired to provide casual assistance. In reality, she’s providing life-saving care, but typically only earns a poverty-level income, often depending on welfare benefits to survive. Meanwhile, the homecare industry is booming, as seniors and people with disabilities are opting to live in their communities, instead of institutions, and receiving more individualized care at home.
The White House’s new rule is a watershed for the domestic workers movement, which has fought on nationally and globally for equal labor protections and union rights. But the next phase in improving labor conditions—collective bargaining and union rights—faces still more legal battles ahead, particularly from anti-union “right to work” advocates.
Earlier this year, the Supreme Court’s decision in Harris v. Quinn undermined the ability of the Illinois home healthcare workers’ union, an SEIU local, to finance itself through collecting fees. But SEIU continues to push for unionization nationwide, having won solid contracts and wage hikes in Illinois, and recently demonstrated the potential of mass organization with an historic union vote in Minnesota.
Dismantling the companionship exemption folds into the evolution of the homecare movement, which has elevated the vocation from the margins of “women’s work” to the forefront of the community health infrastructure. And the law is finally catching up with an overlooked vanguard.
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