The Fight to Protect America's Growing Home Care Workforce

A proposed change to federal labor law will cover more home care workers.

People who care for children, elderly people, and disabled folks of all ages in home settings make it possible for the rest of us to head to our jobs, yet they're consistently left out of basic labor protections. That’s finally starting to change. In 2010, New York passed a Domestic Workers’ Bill of Rights that ensures decent work hours, paid time off, and recourse for discrimination. Now, the fight for similar bills has expanded to other states. The issue also recently made progress at the federal level, with President Obama announcing a proposed change to federal labor law late last year December that will cover more home care workers. The comment period for the proposed change ends next week.

These workers, predominantly women and people of color, comprise a booming industry: The number of home health aide jobs, for example, is projected to grow by 50 percent by 2018. But the pay and benefits remain dismal, with home health aides earning a median salary of less than $10 an hour. They rarely receive paid time off, almost 40 percent have no health insurance, and half rely on public benefits to supplement their incomes. Nannies don’t fare any better: A recent survey showed that the most common pay is $600 per week, or $31,200 a year before taxes.

Both types of home workers are poorly compensated, but there are key differences in how they're paid. Home care workers who care for the elderly are typically paid through Medicare and Medicaid, and can therefore bargain with the government. “That’s impossible for domestic workers caring for children, who have thousands of employers paying out of their private finances,” says Roosevelt Institute fellow and labor expert Dorian Warren.

Those distinctions in type of work, payment, and conditions make it complicated to ensure all in-home workers receive the labor protections they deserve. Here's what's happening at the state and federal levels, and where the fight should focus next.

New federal protections for home care workers

When the New Deal’s labor laws took effect, they excluded the types of in-home jobs held predominantly by women and minorities. That loophole was closed in 1974, when an amendment to the Fair Labor Standards Act extended minimum wage and overtime coverage to domestic workers, including childcare providers, cooks, and housecleaners. But the federal change included the companionship exemption, meant to exclude “casual” baby sitters and those providing company to the elderly or disabled. That caveat was interpreted so broadly that it left many homecare workers unprotected, denying them these basic benefits.

Ai-jen Poo, Director of the National Domestic Workers Alliance, says the exception was the result of a perception that those people “weren’t doing real work.” Of course, some people act simply as companions, sitting with the elderly to keep them safe or provide company. But the reality for many of these workers today is tough, grueling work. Steve Edelstein, national policy director for PHI, says these jobs—which often involve lifting the elderly and disabled to help them bathe, dress, and move around—have some of the highest injury rates of any profession. “It’s a job and has been for quite some time,” Poo says.

If the DOL’s rule change takes effect, anyone working through an agency will automatically be due minimum wage and overtime. Individual workers will also be protected if more than 20 percent of their workday involves such work. The rule acts as a federal floor, so states will be able to go further—like setting a living wage or addressing discrimination.

More states offering protections

New York's law goes much further than the federal proposal, covering "all domestic workers—nannies, housekeepers, and caregivers for the elderly,” says Poo. It also affirms New York’s minimum wage and overtime laws but goes much further, requiring time-and-a-half pay for overtime, at least three vacation days a year, and a maximum eight-hour workday and 40-hour workweek. It ensures disability benefits and gives workers somewhere to turn when they experience harassment and discrimination.

Earlier laws, which granted minimum wage protection and overtime pay without the other protections, meant “the likelihood that the workforce protections in this area would be recognized [was] near impossible,” Poo says. “The Bill of Rights sent a message to workers and employers: This is a real workforce with real protections.”

The law also empowers workers to enforce their rights on their own, which is important for people working out of individual homes. “Does the Department of Labor send out inspectors to people’s homes?" Warren says. "I don’t think so.” Members of New York’s domestic workforce are now starting to bring lawsuits made possible by the bill. Four other states—California, Illinois, Massachusetts, and Colorado—are working on similar legislation.

What’s next?

There's still a lot of ground to cover. Poo says none of these changes deal with the “special vulnerabilities” of being isolated in a household and negotiating one-on-one with employers. These workers rarely receive training, which gives them little room for professional growth and can be dangerous in labor-intensive jobs such as elder care, Edelstein says. And while minimum wage is important, it’s far from enough to comfortably support a family.

Making in-home care workers safe and fairly compensated will require a new set of tactics—“There isn’t an organizing model, so they have to invent one," Warren says. Whatever the method, the changes are a long time coming.

Photo via (cc) Flickr user *clairity*

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