Promises Kept? Obama Acts on Home Care

Promises Kept? Obama Acts on Home Care

Eileen Boris and Jennifer Klein: Promises Kept? Obama Acts on Home Care

?He did it. He kept it,? exclaimed Pauline Beck of Oakland, California, upon hearing that President Obama had moved to cover home care workers like her under the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA). During the presidential primary campaign, Obama spent a day walking in her shoes: preparing breakfast, mopping up, and getting Mr. John, an elderly amputee, ready for the day. ?He promised he was going to do everything he can to help me out. He asked me about my concerns and feelings,? Beck recalled. On December 15, President Obama acknowledged the impact of their day together. ?I can tell you firsthand that these men and women, they work their tails off, and they don?t complain?They deserve to be paid fairly for a service that many older Americans couldn?t live without,? he insisted, proposing new regulations to end the classification of Beck and some 1.8 million other home health workers as ?elder companions.? At his side during the announcement stood Pauline Beck.

The Obama administration seeks to rectify a wrong that has festered since 1975, when the Department of Labor promulgated the ?companionship rule.? The rule came about with the implementation of 1974 amendments to the FLSA that extended wage and hour protections to private household workers, still predominantly African American like Beck. While Congress remedied one injustice, it generated a new inequality by explicitly omitting those newly termed as elder companions from the definition of domestic service, classifying them with casual babysitters. The rule freed ?third party employers,? such as staffing agencies, from paying minimum wages and overtime, and came just as Medicare, Medicaid, and other government programs began to fuel a distinct home health care industry.

In 2007 the Supreme Court upheld the rulemaking authority of the Department of Labor in Long Island Care at Home v. Evelyn Coke, maintaining the exemption for elder companions. But it opened the door to either a legislative override or a new rule. Today twenty-nine states, with half the nation?s overall workforce, omit home care workers from minimum wage and overtime laws; another five states and Washington, D.C. exclude them from overtime.

The Obama proposal reflects the growth of the home health industry, ending the myth that the workforce consists of friendly visitors and not women who labor to support themselves and their families. While the job title has changed repeatedly since the 1930s, these workers always have performed a combination of basic bodily care (bathing, dressing, feeding, and ambulation) and housekeeping. Yet state officials, seeking to reduce public costs, opportunistically have acted as though these responsibilities could be cordoned off from each other.

The new DOL proposal updates the domestic service classification by removing anachronistic titles like footmen and adding nannies, home health aides, and personal care aides. It changes the definition of covered workers by ending the exemption of companions who perform some housework and adding domestic workers who undertake some companionship functions. It restricts use of the companionship exemption to families or individuals who directly employ workers, prohibiting agencies or other third parties from classifying home health workers as companions. It mandates agency payment for travel time of aides who move between clients over the course of a day, long a source of suppressed earnings. The proposal also tries to close a loophole in record keeping for live-in domestic workers of all sorts by requiring even private household employers to tabulate actual hours worked.

In acknowledging that housekeeping is integrally bound up with caregiving in the home, the Obama regulations embody the feminist goal of valuing care work as work. But the impact goes beyond ideology. Amid the current economic and fiscal crisis, states once again seek to define housekeeping as unworthy of public support. Since some 80 percent of the funding for home care comes from public sources, the cost of fairness would increase if employers actually offered overtime. But few employers currently do, which undermines their warning that workers will suffer lower wages under the new rule. The administration estimates an annual price tag of $4.7 million for the next ten years. It further projects reduced turnover, fewer injuries, and decreased worker need for public assistance.

Obama introduced the proposals as part of his ?We Can?t Wait? campaign to stimulate the economy without congressional action. The proposal soon will appear in the Federal Register for a sixty-day comment period after which the Department of Labor can issue a final rule. The National Domestic Workers Alliance, SEIU, and worker allies are marshaling support, but opponents too will send in comments. Delay can mean defeat, as advocates and unions learned during the Clinton years. In the mid-1990s, the Clintonites withdrew a suggested change after opposition from some national disability advocates and provider associations. At the end of the decade, they tried again. But the Department of Labor issued its proposal just as George W. Bush took office. Claiming excessive negative economic impact, he dropped the proposal.

Today Republican lawmakers are poised to offer legislation codifying the companionship rule. They may be more successful at moving a bill out of committee than the Democrats, who introduced a countervailing act following the Coke decision. If the House passes the Republican measure, it would die in the Senate. But an Obama defeat in 2012 would probably put an end to the new Obama rules and reinstate the legal regime of wage theft that the nation has relied upon for home care on the cheap.

It?s not just home care workers whose livelihoods are at stake. When Obama first met Pauline Beck, he said that ?it makes all the difference to have a union representing somebody like Pauline.? Home care unions, like other unions, are now under attack by Republican governors. The Obama administration failed to move on labor law reform, and due to Republican obstruction, it may soon lose the quorum necessary for the National Labor Relations Board to function. All American workers might then find themselves fighting battles for the union representation that pushed economic security and rights to the fore in the first place.

Eileen Boris and Jennifer Klein?s article ?Frontline Caregivers: Still Struggling? will appear in the Winter 2012 issue of Dissent.

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