Are Home-Care Aides Exempt from the Minimum Wage and Overtime Laws?
Please also see our article Home Health Care for more on this topic.
(10/3/16)- The most recent report from P.H.I., a nonprofit research and consulting group that examines federal data each year on the home health care industry, found that home-care aides have seen a national median income of $10.11 an hour, which is down from the $10.05 they earned in 2005.
In light of the upholding by the judicial system of the Labor Department removing these workers in 2013 from the exemption under the federal Fair Labor Standards Act of 1975, as we note in our items below, these employees are now subject to minimum wage and overtime rights, and thus should see their median income on the increase in the following years.
The home-care aides should also be entitled to being paid when they shuttle between jobs, under the Labor Department rule.
For additional information on this topic please also see our article entitled Home Health Aides
The P.H.I. report estimated that the number of home-health aides has increased from 700,000 to more than 1.4 million from 2005 through 2015. About one third of them receive food stamps and 28% of them rely on Medicaid for health insurance.
(8/23/15)- A 3-judge appellate panel in the District of Columbia in Washington affirmed the legality of the regulations drawn up by the Labor Department that will extend minimum wage and overtime protections to almost two million workers who provide home care for the elderly and the disabled.
These regulations had been declared illegal by a federal judge as noted in our item dated 12/26/14 below. The regulations were intended to remove an exemption in federal wage and overtime laws for home-care workers employed by third-party staffing agencies
The panel ruled that the Labor Department has the authority to eliminate the exemption. The Labor Department had created the exemption in 1975 under the terms of a law that Congress had passed that year.
(12/26/14)- A federal judge has declared that the labor Department’s regulations that extended minimum wages and overtime pay to home health-care workers was illegal.
U.S. District Judge Richard Leon ruled that the regulations conflicted with the federal law that has exempted third-party providers of in-home care for the elderly and disabled from complying with wage laws. Please see out item dated 8/18/09 about Evelyn Coke, the home-health worker from New York who was instrumental in having home-aides included under the protection of the federal labor laws.
The regulations, first announced by the president in 2011, were set to go into effect next year, but were postponed when various industry trade groups brought suit against them, arguing that the cost would become overwhelming, especially for the elderly, who depend on these workers to sustain a semblance of quality of life.
(10/10/14)- The Obama administration announced that it would delay enforcement of its plan to extend minimum wage benefits and overtime protections to the nation’s nearly two million home-care workers. The Labor Department had announced a year ago these new rules and protections would go into effect nationwide on January 1, 2015, but now stated that it would not enforce the rules for 6 months, from January 1 to June 30.
From July 1 through December 31, 2015 the Labor Department would “exercise its discretion” in whether to bring enforcement actions against any employer who does not pay the minimum wage or overtime pay.
Under the new rule, home-care workers would have to receive the federal minimum wage of $7.25 an hour and time and a half when they work more than 40 hours a week. Fifteen states have state minimum wage and overtime protection for home-care workers; six others and the District of Columbia require that they receive at least the minimum wage
(7/2/14)- One of the final decisions from the U.S. Supreme Court for this term was rendered on Monday June 30th. Justice Samuel A. Alito, writing for the 5 to 4 majority, concluded that there is a category of government employees called “partial employees”, who can opt out of joining a union and not be required to pay union dues. These home-aides who are paid by Medicaid should not be treated the same way as employees who work directly for the government.
The case of Harris v. Quinn was brought by 8 Illinois residents who provided home care to Medicaid recipients who opposed having to join a union and pay union dues. The National Right to Work Legal Defense Foundation represented the plaintiffs who argued that the state of Illinois was violating the First Amendment by requiring home-care aides to pay compulsory fees even when they disagreed with the union’s position on certain issues.
The union in question, the Service Employees International Union, and the Obama administration argued against the plaintiffs, citing the Abood v. Detroit Board of Education ruling that required workers to pay their “fair share” of union dues, even when they opposed the union’s positions on different issues.
(5/6/14)- Genworth Financial’s latest annual report showed a median rate of $19 per hour for a hired home-maker, who does household tasks, such as cooking and cleaning. Even though their report indicated about a little over $20 per hour for a home-health aide, who helps administer personal care for the patient, we were paying more than that for the home-health aides I was writing about in the item dated 2/8/13 below when we needed one for my wife. As I wrote in that item, we could not have managed without them, and we will always be thankful to them.
The cost of home caregiving has gone up only about 1% annually over the last 5 years, compared with an increase of 4% a year for institutional care, according to the report, for that same period of time. The home-health care aides we used for my wife were hired through an agency, which took care of all the payroll details for them. To find an agency in your local area, you can find one through the federal government’s Eldercare Locator site.
The cost of hiring a home-health care aide will be affected by federal rules extending minimum wage and overtime protection to many of these workers next January.
(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 October 3, 2016