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Home Care Aides Await Decision On New Labor Rules

Home health care aides are waiting to find out if they will be entitled to receive minimum wage. A decades-old amendment in labor law means that the workers, approximately 2.5 million people, do not always receive minimum wage or overtime.

The Obama administration has yet to formally approve revisions to the Fair Labor Standards Act that would change that classification.

On Dec. 15, 2011, Obama announced the proposal, and then-Labor Secretary Hilda Solis offered her support for the revisions in the Labor Department's blog:

"This new rule would ensure that these hardworking professionals who provide valuable services to American families would receive the protections of minimum wage and overtime pay that nearly every employee in the United States already receives under the FLSA."

The guidelines would affect a growing industry (revenues for home health care services nearly doubled to $55 billion between 2001 and 2009, according to the U.S. Census).

Missing Out On Overtime

The revision would also affect people like Lou Garcia.

Garcia is up before the sun rises in Los Angeles to prepare breakfast for an elderly woman with Alzheimer's. They do errands together. Garcia reads her books, takes her to doctors' appointments, does her laundry, cleans her house and makes her dinner.

Garcia makes $10 an hour. She works 12 hours a day and sometimes on the weekends. But while she works more than 40 hours a week, Garcia doesn't make overtime.

She's not even guaranteed minimum wage because a provision in the federal law, passed in 1974, says home health aids are exempt from those requirements. Companies can pay home workers what they want and can ask them to work as many hours or days as they'd like.

The Labor Department's Wage and Hour Division website notes that while the regulations haven't changed since they were enacted, "the in-home care industry has undergone a dramatic transformation."

Catherine Ruckelshaus, legal co-director at the National Employment Health Project, calls the exemption "an accident of history," with U.S. labor laws treating the workers like adult baby-sitters.

Ruckelshaus says Medicaid pays agencies about $18 an hour for in-home care services. Private clients usually pay a few dollars more. The worker sees about half that. Companies usually pay home workers $9 to $10 an hour, meaning the companies are bringing in $8 to $9 for every hour a worker spends in a home.

The Extra Cost

William Dombi is vice president for law for the National Association for Home Care and Hospice, a trade organization that represents the companies hiring the workers. He says they are supportive of paying workers at least minimum wage.

But Dombi says the companies cannot afford to pay overtime for nights and weekends because the companies' profits are largely fixed by Medicaid.

"Businesses can't simply add another cost like overtime through a price rise as other businesses might for a hotel room or for a rental car," Dombi says.

The workers and the companies aren't the only ones engaged in this debate over how the federal guidelines should be amended. There's also an association representing people with disabilities who use the workers.

Bob Kafka, co-director of disability rights group ADAPT, says he wants the workers to be paid overtime and minimum wage, but he says his organization can't support the overtime changes to the guidelines either.

"We don't in principal oppose that, but the unintended consequence of these rules is that people with significant disabilities will have to find multiple attendants, and many of the attendants will end up just leaving the job," Kafka says.

Back To The Nursing Home?

Kafka says families won't be able to pay more, and neither will the government. He says many of these people will be forced back into nursing homes, which will cost taxpayers significantly more.

But workers like Garcia say that is the point. In a nursing home, workers doing the same job — cleaning, bathing and caregiving — are entitled to minimum wage and overtime.

"I think it's unfair to us because we are doing a job, and we are also human, and we need to be treated as the other people doing other jobs," Garcia says.

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