Home Care Bill Would Undo DOL's 'Casual Basis' Interpretation

A bill that would alter the Fair Labor Standards Act exemption for agency-employed home care workers was filed last week in both houses of Congress. The Fair Home Care Act (H.R. 3582, before the House Education and Labor Committee, and S. 2061, before the Senate Health, Education, Labor and Pensions Committee) responds to the June 11, 2007, U.S. Supreme Court unanimous decision in Long Island Care at Home Ltd. v. Coke, which upheld a Labor Department interpretation that exempted such workers from the Fair Labor Standards Act's minimum wage and overtime provisions. The plaintiff was a home worker who sued her former employer for years of unpaid overtime pay and wages.

The court's decision noted that DOL has wrestled with the interpretation since at least 1993 and even issued its latest interpretation as an internal memorandum only, apparently in response to the Coke lawsuit. But the high court backed the department, saying the interpretation is reasonable.

Rep. Lynn Woolsey, D-Calif. who chairs the House Labor Subcommittee on Workforce Protections, introduced the House bill. Sen. Tom Harkin, D-Iowa, a member of the Senate HELP Committee, introduced the Senate version with 10 co-sponsors, all Democrats, including his fellow HELP members Sens. Hillary Clinton, Christopher Dodd, Barack Obama, and Ted Kennedy, the committee's chairman. Woolsey said in a Sept. 19 speech in the House, as she introduced her bill, that the 1974 exemption is impractical in the current economy. "In 1974, when the exemption was enacted, home care, like babysitting, was largely provided by family and friends," she said. "Today, we live in a different world, and caregiving is one of the fastest-growing industries in the United States. Today about 2.4 million workers are employed by nursing homes, home health care agencies, assisted living, and other residential facilities. Low wages and high turnover contribute to the shortage of workers in this fast-growing field. In 2003, direct-care workers earned an average of $9.20 per hour, significantly less than the average U.S. wage of $13.53 for all workers. Nearly 20 percent of all direct-care workers earn annual incomes below the poverty level, and they are twice as likely as other workers to receive food stamps and to lack health insurance. In addition, most home health care workers are minority women, likely to be single heads of households."

The exemption was meant to apply only to "casual basis" workers, Woolsey said. The new bill clarifies that home health care workers are entitled to OT and minimum wages as long as they are not employed on a "casual basis" -- that is, they work in this capacity more than 20 hours per week.

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