Implementation of the new rules extending the minimum wage protections to home care employees have been delayed. Comprised of about two million workers nationwide, this low wage labor group remains marginalized and disenfranchised even as the national debate over fair wage compensation heats up.
As is the case with undocumented labors these “companionship services” workers perform the jobs that few Americans are willing to do. These are the people who execute invisible and often unpalatable tasks for the home bound, including bathing, transferring, toilet assistance, meal preparation and help eating, toilet assistance and sometime housecleaning. In most cases, the job requires attention to the personal and private needs of the elderly and infirm.
According to the original rules – which are essentially unchanged since 1975 – companionship workers were “exempted” from anything like fair labor protections under the Fair Labor Standards Act (FLSA). As applied by the FLSA in this case, “exempted” is an ironic term that normally means one is excused from something undesirable. Up until the rule change in the fall of 2013, companionship workers were not covered by the Federal minimum wage laws and not required to be paid overtime after 40 hours. This is understandable to a large degree, because the original exemption was intended to cover so called “elder sitters” whose primary function really was to provide companionship. A lot has changed in the health care business since then, and courts have generally interpreted the definition of companionship workers broadly. That means even more workers were exempted from wage protections over the years.
The new rules would extend the Federal minimum wages of $7.25 an hour and were scheduled to go into effect Jan 1, 2015. Once the rules are implemented, home care workers would also receive time-and-a-half overtime pay when they work over 40 hours a week. The new rule, whenever it really goes into effect, will also apply to most third-party entities that provide non-medical companionship services.
That Federal minimum wage, by the way, translates to about $15,000 a year gross salary. That’s $9,000 below the federal poverty line if you’re supporting a household of four.
Unfortunately, paying home care workers even a modicum living wage was not seen as a slam dunk by everyone. No sooner had the Department of Labor announced the final rule change than home-care industry officials complained that the new rule would increase costs and price home care out of the market. They warned that more old people would be forced into nursing homes. A number of states, including Illinois, expressed concern over increased Medicaid costs.
As a result, the Department of Labor announced on Oct 7 that it would not begin enforcing the rule as scheduled on Jan 1, 2015. Furthermore, it would exercise its discretion for the period from July 1 to December 31, 2105. That language means the DOL doesn’t plan to bring any enforcement action until at least 2016.
It is worth noting that the 2013 announcement of the “new final rule” followed the six month public comment period through which government agencies are required to vet any proposed rule changes. So any enforcement initiative to assure home care workers a more decent wage will get underway with years long delays already embedded. Undoubtedly some of these objections are honest and some are self-serving, but it is a curious system that can’t function without the exploitation of low wage workers.
This may not be precisely what William Gladstone had in mind when he said “Justice Delayed is Justice Denied,” but it’s close.