U.S. News & World Report: U.S. News & World Report: Working Overtime for Poverty Wages

At a time when low-wage employers like Wal-Mart and McDonald’s are scrambling to raise pay in response to growing public outcry against poverty wages, you’d think that no employer in its right mind would still argue that it should have no legal obligation to pay its workers at least the minimum wage.

But that’s exactly what’s happening in a case before the federal appeals court in Washington, D.C. On Thursday, the home care industry will try to convince the court that, unlike any other U.S. industry, it should not have to pay its workers the minimum wage and overtime.

For decades, the home care industry has profited handsomely from its unique exemption from Fair Labor Standards Act regulations. Now, intent on preserving that special treatment, it wants to squash the U.S. Labor Department’s effort to reform its outdated “companionship” rule.

The practical implications of this case are profound. It will determine whether the labor of 2 million workers who care for our elderly parents and loved ones with disabilities will finally be recognized as real work worthy of legal protection. It will decide whether a perverse anomaly persists: preserving minimum wage and overtime pay for nursing home aides while denying it to workers who provide similar care in clients’ homes, which is a less costly, frequently more appropriate, typically preferred and certainly more nurturing environment. And it will affect the sustainability of the vast home care system, currently compromised by worker burnout and turnover endemic to substandard wages.

At issue in the case, Home Care Association of America v. Weil, is the Labor Department’s revision of the rule that governs which home care workers get basic wage rights and which don’t. Until now, the regulations excluded essentially all home care workers from minimum wage and overtime protections. The exclusion has its root in a 1974 law that extended minimum wage and overtime protections to domestic workers but carved out what was supposed to be a minor exception for some casual caregivers – people serving in a role akin to babysitters. The problem came when the Labor Department adopted an overly broad definition of “companionship” in the rules implementing the 1974 law; the “companionship” exemption became a chasm that swallowed up the expanding and now huge home care workforce, seriously undermining the 1974 reform.

A correction has been long overdue, especially now that home care is one of the fastest-growing occupations, constituting a $100 billion industry. So, the Labor Department, after conducting an exceedingly thorough analysis of what lawmakers intended in the 1974 law and what basic justice demands, issued a new rule that shifts the line so that most professional home care workers will gain minimum wage and overtime coverage; only those who primarily provide fellowship and protection would continue to be exempt.

The lawsuit’s plaintiffs vehemently oppose the reform, contending that the agency exceeded its authority. For them, what’s really at stake is whether for-profit businesses will be able to continue raking in huge profits on the backs of woefully underpaid home care workers. Their legal argument holds no water; the Labor Department clearly acted within its explicit statutory and Supreme Court authority to define the exemption.

Thankfully, in its remarkably long, transparent, and thorough rulemaking process, the Labor Department heard many perspectives other than the International Franchise Association’s, whose lobbying goals for low-wage workers also include defeating minimum wage increases, getting McDonald’s off the hook for illegally firing workers and making it harder for workers to form unions. The agency heard from many home care business owners who support reform, like Roy Gedat from Maine, who explained that “attracting and retaining skilled and compassionate people is challenging enough. Over the years, I’ve seen too many exemplary workers leave the profession because they just couldn’t make it financially.”

And included among the huge numbers of supportive comments – over 75 percent of the 26,000 comments favored the change – were testimonials from clients like Lateef McLeod, who had employed personal care assistants for most of his life and supported the wage reform because “assist[ing] this field of work to become more professional” will result “in people with disabilities and the elderly having a more qualified work force to choose from.” Of course, thousands of workers also weighed in to make the case that their work is increasingly professionalized, skilled and demanding, nothing like the casual companionship Congress intended to exclude from basic labor protections.

This ample record informed not only the Labor Department’s new regulations, but also prompted the agency to grant businesses and other affected parties a 15-month phase-in and an additional six-month delay on enforcement, in recognition of the fact that an industry developed in the absence of labor regulation needed time to adjust. Of course, the industry plaintiffs are not satisfied with those accommodations. They’ve taken their desperate fight to maintain the status quo to the courts, regardless of its dire consequences for the workers and those who rely on their services.

They will have a tough time arguing with a straight face that more than 2 million workers in one of our nation’s fastest-growing occupations still don’t deserve the most basic protections under our nation’s workplace laws.

Read the original article at U.S. News & World Report.

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Christine L. Owens

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