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Are Home-Care Aides Exempt from the Minimum Wage and Overtime Laws?

(8/19/09)- Evelyn Coke, the home-health care worker, who instituted the lawsuit claiming that home-care workers were not exempted and should be covered under the federal labor regulations, died at the age of 74, on July 9 in Manhasset, N.Y. of heart failure. To see more on that case, please see our item dated 6/23/07 below.

Ms. Coke a single mother of five earned about $7 an hour, and got no overtime pay. She typified the magnificent work being done by these workers at an exceeding low wage scale.

Evelyn Coke will remain a symbol for those trying to correct this injustice. In June 15 Senators and 37 House members wrote to Hilda L. Solis, secretary of labor, urging her to eliminate the exemption for home-care aides.

Ms. Solis stated that she intends to "fulfill the department's mandate to protect America's workers, including home health care aides, who work demanding schedules and receive low wages."

Ms Coke was born in Westmoreland, Jamaica on December 25, 1934. She worked in that country in the home care field, which she continued to do when she came to this country in 1970. She lived in Florida and Maryland before coming to New York City. It was noted that she sometimes worked three consecutive 24- hour shifts without getting any overtime pay.

(10/12/07)- In a follow-up to our item dated 8/27/07 below, Attorney General Andrew M. Cuomo of New York announced the indictment of 11 people accused of distributing fake certificates used by home health care aides whose services cost the state Medicaid program more than $1 million. Since Mr. Cuomo began the investigation more than two years ago, 48 people have been charged.

Of those 48, 17 aides, two nurses and the managers of two schools that provided false certificates have been convicted in schemes to defraud Medicaid. In some cases, the defendants were either working with false training certificates or for agencies that billed the government for services that were not provided. The arrests have included people working for training programs and employment agencies.

Hearings are to begin when the state legislature returns to its session in the fall on legislation that would require closer scrutiny of home aides and the creation of a central registry of certificates detailing their training and background. State health officials warned however that because of the logistics involved, it could not put the legislation into actual practice for quite a while.

Last year, $1.3 billion of the state's $35.7 billion in Medicaid spending went to home health care.

(8/27/07)- Attorney General Andrew M. Cuomo of New York has issued subpoenas to dozens of health care agencies, saying that preliminary evidence suggested that the home care aide industry was rife with fraud. The subpoenas represent the latest stage of a two-year investigation into the industry, begun under his predecessor, Governor Eliot Spitzer.

The investigation has previously centered on schools that train and certify the aides, and on vendors who contract the aides' services out to the agencies. The investigation is now branching out to verify the qualification of aides whose services the agencies billed Medicaid, as well as the schedules for the hours they billed and the names of the vendor companies that supplied the services.

Under an agreement reached with federal officials in 2006, New York must recover $1.6 billion worth of fraudulent Medicaid dollars over five years to help qualify for hundreds of millions of dollars in federal financing. In New York City, Medicaid spending on home health care aides totaled $1.3 billion last year.

About 54,000 city residents receive some sort of Medicaid financed home health service. The agencies are certified by the state's Department of Health, which also certifies the schools that train the aides. It is the schools themselves that certify that the aides have completed the required training. Because there is no central registry for those certifications, state officials do not know how many home health aides are working in the state at any given time.

(6/23/07)- In a 9-0 decision the U.S. Supreme Court upheld federal regulations that exempt home health care aides who work through agencies from minimum-wage and overtime protection. Evelyn Coke, an employee of Long Island Care at Home did not get time-and-a-half for overtime even when she worked 24-hours a day at homes in Great Neck and Manhasset in Long Island. Ms. Coke, 73, initially filed her lawsuit in 2002.

The main issue in the case was whether several 1974 amendments to the Fair Labor Standards Act exempted home care aides employed by agencies from minimum wage and overtime protections. All parties in this dispute agreed that those amendments exempted aides hired directly by the elderly or the infirm.

The Bloomberg administration in New York filed a brief in support of the agency, stating how costly it would be for Medicaid to pay the additional costs if home care aides were to be paid overtime and minimum wages.

Justice Stephen G. Breyer wrote the opinion for the majority in which he acknowledged that the Labor Department had issued conflicting regulations on this matter. Ms. Coke's attorneys cited a recent ruling of the U.S. Court of Appeals for the Second Circuit which had invalidated a regulation exempting the aides from wage protection The circuit court ruled that the regulation clashed with 1974 legislation that broadened minimum wage coverage.

But the Supreme Court overruled the circuit court, saying that Congress's intent was clear with regards to home care aides. Justice Breyer wrote that he court should defer to the department's expertise, and especially to its most recent interpretations, which take the position that the aides should be exempt.

Senator Edward M. Kennedy (Mass.-Dem.) said he would seek to amend the Fair Labor Standards Act to ensure that home aides were protected.

(4/30/07)- The U.S. Supreme Court has just heard the oral arguments from a ruling in July 2004 from the United States Court of Appeals for the Second Circuit in Manhattan in which the court concluded that Labor Department had erred I issuing a regulation that exempted home-care aides from coverage under an amendment to the Fair Labor Standards Act of 1974.

Congress had amended the act in 1974 to extend minimum wage and overtime protections to maids, cooks and other domestic workers. The amendments exempted baby sitters and workers who provided companion services for the elderly and the infirm.

In setting up regulations in 1975, as required by the law, the Labor Department adopted two seemingly contradictory regulations. One stated that home-care aides would be exempt only when they worked in a private home "of the person by whom he or she is employed."

The second regulation issued by the Labor Department stated that home-care workers employed by third party employers other than the family would be exempt from minimum wage and overtime coverage.

The Labor Department has concluded that the second regulation is the operative one, and thus home-care aides are not covered by the Fair Labor Standards Act of 1974.

In the case being adjudicated in the Supreme Court now Evelyn Coke, a now infirm and elderly former home-care aide who is 73- years of age, was employed by a home-care company by the name of Long Island Care at Home. This was the company that found employment for her, and did not pay the minimum wage or overtime rate to her. The company claimed that under the second exemption from the Labor Department's regulation the law did not call for these benefits.

Her lawyer, Craig Becker, urged the Supreme Court in his oral argument and in his legal documents also to uphold the lower court ruling since the Labor Department's second exemption clashed with the intent of the law.

There are an estimated 1.4 million home-health care workers in this country and both the President George W.Bush administration and the Mayor Michael Bloomberg administration argued that the Labor Department's second exemption was proper and should be upheld. Both executives argued in their legal papers that the cost of voiding the exemption would put an undue burden on the federal, state and city governments.

We at therubins are shocked by the thought that the lowly home-care aides are being blamed for increasing the high cost of the medical system. These workers deserve all the protection of the minimum wage and overtime laws that are available to all workers in this country. Why should they be exempted from the protections that are afforded to other workers in this country?

Also please see our article: "Home Health Care"

FOR AN INFORMATIVE AND PERSONAL ARTICLE ON PRACTICAL SUGGESTIONS WHEN SELECTING A NURSING HOME SEE OUR ARTICLE "How to Select a Nursing Home"

By Allan Rubin
updated August 19, 2009

http://www.therubins.com

To e-mail: hrubin12@nyc.rr.com or rubin@brainlink.com

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