Home health care aides are waiting to find out if they will be entitled to receive minimum wage. A decades-old amendment in labor law means that the workers, approximately 2.5 million people, do not always receive minimum wage or overtime.
The Obama administration has yet to formally approve revisions to the Fair Labor Standards Act that would change that classification.
On Dec. 15, 2011, Obama announced the proposal, and then-Labor Secretary Hilda Solis offered her support for the revisions in the Labor Department's blog:
"This new rule would ensure that these hardworking professionals who provide valuable services to American families would receive the protections of minimum wage and overtime pay that nearly every employee in the United States already receives under the FLSA."
The guidelines would affect a growing industry (revenues for home health care services nearly doubled to $55 billion between 2001 and 2009, according to the U.S. Census).
Missing Out On Overtime
The revision would also affect people like Lou Garcia.
Garcia is up before the sun rises in Los Angeles to prepare breakfast for an elderly woman with Alzheimer's. They do errands together. Garcia reads her books, takes her to doctors' appointments, does her laundry, cleans her house and makes her dinner.
Garcia makes $10 an hour. She works 12 hours a day and sometimes on the weekends. But while she works more than 40 hours a week, Garcia doesn't make overtime.
She's not even guaranteed minimum wage because a provision in the federal law, passed in 1974, says home health aids are exempt from those requirements. Companies can pay home workers what they want and can ask them to work as many hours or days as they'd like.
The Labor Department's Wage and Hour Division website notes that while the regulations haven't changed since they were enacted, "the in-home care industry has undergone a dramatic transformation."
Catherine Ruckelshaus, legal co-director at the National Employment Health Project, calls the exemption "an accident of history," with U.S. labor laws treating the workers like adult baby-sitters.
Ruckelshaus says Medicaid pays agencies about $18 an hour for in-home care services. Private clients usually pay a few dollars more. The worker sees about half that. Companies usually pay home workers $9 to $10 an hour, meaning the companies are bringing in $8 to $9 for every hour a worker spends in a home.
The Extra Cost
William Dombi is vice president for law for the National Association for Home Care and Hospice, a trade organization that represents the companies hiring the workers. He says they are supportive of paying workers at least minimum wage.
But Dombi says the companies cannot afford to pay overtime for nights and weekends because the companies' profits are largely fixed by Medicaid.
"Businesses can't simply add another cost like overtime through a price rise as other businesses might for a hotel room or for a rental car," Dombi says.
The workers and the companies aren't the only ones engaged in this debate over how the federal guidelines should be amended. There's also an association representing people with disabilities who use the workers.
Bob Kafka, co-director of disability rights group ADAPT, says he wants the workers to be paid overtime and minimum wage, but he says his organization can't support the overtime changes to the guidelines either.
"We don't in principal oppose that, but the unintended consequence of these rules is that people with significant disabilities will have to find multiple attendants, and many of the attendants will end up just leaving the job," Kafka says.
Back To The Nursing Home?
Kafka says families won't be able to pay more, and neither will the government. He says many of these people will be forced back into nursing homes, which will cost taxpayers significantly more.
But workers like Garcia say that is the point. In a nursing home, workers doing the same job — cleaning, bathing and caregiving — are entitled to minimum wage and overtime.
"I think it's unfair to us because we are doing a job, and we are also human, and we need to be treated as the other people doing other jobs," Garcia says.
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Transcript
LAURA SULLIVAN, HOST:
It's WEEKENDS on ALL THINGS CONSIDERED from NPR News. I'm Laura Sullivan.
Our cover story today looks at health care, innovations that can keep us from getting sick and the people who take care of us when we are. We will take you to a hospital with an unusual way to keep people healthy.
But first, a look at home health care. It's a growing $84-billion-a-year industry. Millions of workers are helping sick Americans out of bed, feeding them, cleaning their houses, taking them for walks around the block. Their numbers are expected to double in the next five years. But a cork in labor law means these workers are not always paid minimum wage or overtime.
Now, the Obama administration is considering new guidelines that will change that. Here's how Lou Garcia's day begins. She's a home health aide, and she's up before the sun.
LOU GARCIA: As early as six or before seven, everything should be prepared for the breakfast. And then after clean her up, you can feed...
SULLIVAN: Every day, Garcia cares for an elderly woman with Alzheimer's in Los Angeles. Garcia runs errands, reads her client books, takes her to doctor's appointments, does her laundry, cleans her house, makes her dinner.
GARCIA: Sometimes it's boring, but if you make yourself busy, it's not.
SULLIVAN: Garcia makes $10 an hour. She works 12 hours a day and sometimes on weekends. But while she works more than 40 hours a week, Garcia doesn't make overtime. She's not even guaranteed minimum wage. That's because a 40-year-old federal law says home health aids are exempt from those requirements. Companies can pay home workers what they want and can ask them to work as many hours or days as they'd like.
Cathy Ruckelshaus is the legal co-director at the National Employment Health Project, and she explains how we got here.
CATHY RUCKELSHAUS: It's really an accident of history, but the federal minimum wage law, which is called the Fair Labor Standards Act, was amended in 1974 to include domestic workers for the first time. But at the time, they drew out two narrow exclusions. One was for the, you know, teenager who comes down the street to babysit on a Saturday. And the second exclusion was what they called companions. And they meant by that elder sitters.
SULLIVAN: Hmm. So they're being considered to be adult babysitters in some way.
RUCKELSHAUS: That's right. That's right. Kind of casual elder sitters, but all of those workers are interpreted to be under that companionship exemption, so they're not covered by federal minimum wage and overtime protections.
SULLIVAN: So who is this worker?
RUCKELSHAUS: So there's about 2.5 million of them, and they're projected to grow another million and a half in the next decade. So it's a growth workforce because the demand is rising. And they're overwhelmingly women and women of color. There's high turnover, it's a difficult job. And because more than half are 45 years or older, more of them are getting injured if they have to lift somebody. It's a very difficult job, and there just hasn't been a lot of oversight.
SULLIVAN: That's a lot of workers. Why has this group flown so far under the radar of regulation for so long?
RUCKELSHAUS: It's happening in individual's homes. It's not a very visible workforce, even though most of us in this country have been touched by these workers in some way or another. We have a grandmother or an elderly relative or a parent or somebody we know in our neighborhood who may be disabled and need these services. So they really do impact almost everybody in this country with the work they perform.
SULLIVAN: Cathy Ruckelshaus says Medicaid pays agencies about $18 an hour for these services. Private clients can pay a few dollars more. The worker sees about half that. Companies usually pay home workers nine or $10 an hour, meaning the companies are bringing in eight or $9 for every hour a worker spends in a home.
WILLIAM DOMBI: A very elementary understanding of finance would lead someone to recognize that growth margins have nothing to do with profits.
SULLIVAN: William Dombi is with the National Association for Home Care and Hospice, a trade organization that represents the companies hiring these workers. He says the companies are supportive of paying workers at least minimum wage, but he says the companies cannot afford to pay overtime for nights and weekends. That's because, he says, the companies' profits are largely fixed by Medicaid.
DOMBI: Businesses can't simply add another cost like overtime through a price rise as other businesses might for a hotel room or for a car rental or for pizza.
SULLIVAN: Now, the workers and the companies aren't the only ones engaged in this debate over how the federal guidelines should be amended. There's also an association representing people with disabilities who use the workers.
Bob Kafka is co-director of ADAPT, a disability rights group. Kafka says he wants the workers to be paid minimum wage and overtime, but here's the but: Kafka says his organization can't support the overtime changes to the guidelines either.
BOB KAFKA: We don't in principal oppose that, but the unintended consequence of these rules is that people with significant disabilities will have to find multiple attendants, and many of the attendants will end up just leaving the job, go to other careers where they pay better benefits, because they have been particularly working those extra hours just to be able to make a living wage for their families.
SULLIVAN: What do you propose is a solution then?
KAFKA: Well, we would like Medicaid to be able to pick up the time-and-a-half, but since the states are currently cutting Medicaid, we do not think that that will occur. Even the most progressive governors in the country are reducing Medicaid rates. So we do not believe that they will increase to match the time-and-a-half that the current DOL rules are proposing.
SULLIVAN: Kafka says families will not be able to pay more and neither will the government. He says many of these people will be forced back into nursing homes, which will cost taxpayers significantly more. But workers like Lou Garcia say that is the point. In a nursing home, workers doing the same job - cleaning, bathing and caregiving - are entitled to minimum wage and overtime.
GARCIA: I think it's unfair to us because we are doing a job, and we are also human, and we need to be treated as the other people doing other jobs.
SULLIVAN: The Obama administration is expected to finalize changes in the next few months. Transcript provided by NPR, Copyright NPR.
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