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The FLSA's Unfinished Business: Coverage for Home Care Workers

Today marks the 75th anniversary of the Fair Labor Standards Act (FLSA), the cornerstone federal labor law that established the first federal minimum wage and overtime standards. As my colleague Colette Irving explains in her post today, the history of the FLSA has included some big steps forward — and a few steps back — for women over the past 75 years. 

The expansion of FLSA coverage in 1974 to domestic workers working in private homes was one such step forward, as women represented the majority of domestic workers who benefited from this expansion. But an exemption enacted at the same time had an adverse impact on women that has only grown worse over time. Specifically, the 1974 FLSA amendments created a “companionship exemption,” which Congress intended to exclude only casual babysitters or “elder-sitters” from the domestic service coverage. However, in 1975, the Department of Labor (DOL) interpreted this exemption very broadly to cover home care workers employed by third parties — workers who, prior to the 1974 amendments, had been protected under the FLSA’s provisions regulating enterprises engaged in interstate commerce

Since 1975, this expansive reading of the companionship exemption has proven to be disastrous for women, who represent about 90 percent of the home care workforce. Today, most home care workers are employed by third party agencies in the fast-growing, $84 billion home care industry — an industry in which agencies charge their clients $19 to $21 per hour and 30 to 40 percent profit margins are “not uncommon” [PDF], while the median wage for workers is below $10 per hour and one-quarter of home care workers are paid below the federal minimum wage of $7.25 per hour. These low wages devalue the vitally important and demanding jobs performed by home care workers, who provide the intensive care necessary for frail elders and people with disabilities to stay in their homes and give families peace of mind in knowing that their loved ones are being cared for. 

In 2007, the Center joined other groups supporting a home care worker, Evelyn Coke, who challenged the companionship exemption all the way to the Supreme Court. As a home care worker employed by a company considered a covered enterprise under the FLSA, Ms. Coke sued her employer for back pay when she discovered that she had been paid less than minimum wage and denied overtime pay. The Supreme Court ruled against Ms. Coke, upholding the companionship exemption to exclude home care workers from the FLSA’s protections — but the Court also noted that DOL had the authority to reinterpret the exemption and extend protections to those workers. And in December 2011, DOL finally exercised that authority, proposing new rules that would restore FLSA coverage for domestic workers employed by third parties and clarify the companionship exemption so that it does not apply to professional caregivers. 

These new regulations would finally grant minimum wage and overtime protections to nearly 2 million home care workers. But more than 18 months after DOL issued its proposed rule — and five months after DOL sent a draft final rule to the White House Office of Management and Budget (OMB), which must approve the regulations before they can go into effect — the final rule has yet to be published

Today, on the 75th anniversary of the FLSA, you can help home care workers get the basic labor protections they need and deserve. If you are a home care worker, rely on one to care for you or a family member or friend, or simply care about fair pay for women, please sign this petition and ask President Obama and OMB Director Burwell to act NOW to finalize the regulations that will grant FLSA protections to home care workers across the country. Women and their families can’t afford to wait. 

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