Promises Kept? Obama Acts on Home Care
Eileen Boris and Jennifer Klein
Dissent Magazine
December 22, 2011

http://www.dissentmagazine.org/atw.php?id=640

"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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