Better Care Through Better Wages
Currently about 1.7 million home care workers are not eligible to receive minimum wage and overtime protections.
Why? Because they are not covered by regulations under the Fair Labor Standards Act (FLSA) which gives workers important wage protections.
Right now, the Fair Labor Standards Act regulations give minimum wage and overtime protections to domestic service employees - people who work in a private home. However, these protections do not apply to “companionship services” provided to an older adult or person with disabilities who can’t care for themselves. The intent of Congress when it passed the Fair Labor Standards Act was to exclude someone who was providing company to a consumer and watching out for their safety while doing so. However, the term “companionship” has been applied very broadly to include home health aides and personal care aides/attendants.
The Department of Labor has proposed a rule to extend minimum wage and overtime to home care workers.
Increasing wages for home care workers is an important step toward improving the quality of the job. Improving the quality of the job makes workers' lives better, increases job satisfaction, reduces stress and improves morale - which means better care for consumers.
What's in the proposed rule?
- Includes home health aides and personal care aides as domestic service employees.
- Applies FLSA protections to everyone except those who meet a new, very narrow definition of “companionship services.”
- New definition: a worker whose only responsibilities are to provide fellowship or protection and whose duties include no more than an “incidental” amount of other services.
- "Incidental services" include dressing, grooming, toileting, helping someone to eat, driving to appointments, washing clothes (and similar tasks) IF these services are done while the worker is providing fellowship or protection.
- These services can only be provided occasionally.
- These services can’t include household work that benefits others in the household.
- Worker can spend no more than 20% of total time worked in a week providing these services.
What would the rule do?
- For the first time any worker employed by an agency would get minimum wage and overtime protections, and pay for travel time between clients. The majority of home care workers and personal care aides/attendants work for agencies.
- Workers whose responsibilities are to assist consumers with tasks such as bathing, dressing, going to the bathroom, eating and getting around, and other tasks like light housekeeping, laundry, preparing meals, chores and running errands would not be companions.
- Consumers who hire their own worker under a Medicaid funded program or who pay out of their own pockets would pay minimum wage and overtime unless the worker meets the new, narrow definition of companion.
What are the positive impacts of the proposed rule?
- Increasing wages for home care workers is an important step toward improving the quality of the job. Improving the quality of the job makes workers' lives better, increases job satisfaction, reduces stress and improves morale - which mean better care for consumers.
- Would help retain workers and reduce the turnover rate.
- Could attract more people to the job – making more workers available to provide the hours of care that consumers need.
- Could make it easier for agencies and consumers to find workers to hire.
- Would help to attract more workers and more qualified workers.
The Consumer Voice supports this rule. However, we have identified some areas that are unclear or that might be of concern to some consumers --
Incidental services:
- If a worker employed by a consumer goes over the 20% limit one week, but not the next, does the consumer have to keep changing the amount s/he is paying the worker?
- How occasional is “occasional?” For example: A worker keeps Mrs. Jones company three times a week in the afternoon. During that time, she helps Mrs. Jones take a walk and assists Mrs. Jones in putting on and taking off her coat every time. Is this considered to be occasional dressing?
- Incidental services cannot benefit others in the household. For example, a worker makes a meal for Mr. Roberts while providing fellowship and protection and cleans up the kitchen afterwards. Since cleaning up the kitchen would benefit others living in the house, does this mean the worker would not be entitled to FLSA protection?
Record-keeping
- How do consumers who hire their own worker know how much time the worker is spending on “incidental services” in a week? How do they track this?
- If a live-in worker is employed by the consumer, the burden is on the consumer as employer to make and maintain accurate records.
- What if an adult daughter hires a worker to live with her Mom who has dementia or to sit with her Mom four times a week. The daughter lives in another town. How does the daughter know what hours are actually worked or how much time the worker is spending on “incidental services?"
Cost:
- Some consumers may have to pay more for care if they are not currently paying their workers minimum wage. However, the minimum wage is already required in 21 states so many consumers are already paying at this rate.
- Consumers who hire a worker for more than 40 hours would have to pay overtime. This is a very small percentage of consumers. Consumers who don’t want to pay overtime can find another worker and split up the hours.
- The impact on the LTSS system is unknown. However, we know that 21 states currently pay minimum wage and 15 states pay minimum wage/overtime. These states have not seen an increase of people being forced into nursing homes because the cost of home care became too expensive.
Tell us what you think about DoL's proposed rule - click here.
To Learn More:
Join a free webinar, "Providing Minimum Wage and Overtime Pay to Home Care Workers," hosted by Caring Across Generations. Register online for the February 9 3pm ET call and/or the February 14 11am ET call.
Deparment of Labor Notice of Proposed Rulemaking to Amend the Companionship and Live-In Worker Regulations
National Employment Law Project Fact Sheet re: Proposed Companionship Regulations
National Employment Law Project publication, "Fair Pay for Home Care Workers: Reforming the U.S. Department of Labor’s Companionship Regulations Under the Fair Labor Standards Act"
PHI publication, "Value the Care! Minimum wage and overtime for home care aides"
- Volume 1
- Volume 2
- Volume 3
