Judges weigh minimum wage, overtime rules for home care providers

Two of the three judges on a powerful federal court appeared sympathetic to the Department of Labor’s push to make home care providers of third-party employers eligible for minimum wage and overtime pay during oral arguments on Thursday.

At issue are workers who serve as aides for the elderly and disabled at home. While they are not providing healthcare, Judge Cornelia Pillard, of the D.C. Circuit Court of Appeals, suggested they should be treated as other professionals.

“It was the intent of Congress to give wage and labor protections to people who were doing this as their bread and butter,” she said referring to the Fair Labor Standards Act.

{mosads}Under the Fair Labor Standard Act, third-party employers have been exempt from having to pay overtime if a domestic service employee is hired to provide companionship services to elderly and disabled individuals unable to care for themselves.

The Labor Department issued a rule to change the definition of “domestic service employment” and “companionship services” to remove the exemption which third-party employers have had since 1974.

The new rule that said if an employee is spending more than 20 percent of their day providing care — preparing meals, helping patients get dressed or use the bathroom — the employer would be disqualified from seeking the exemption.

The rule also limited companionship and live-in employee exemptions to workers employed by the family or household receiving the care.

Home Care Associates of America, the International Franchise Association (IFA) and the National Association for Home Care & Hospice sued the Labor Department, arguing that it overstepped its rule-making authority.

A federal district court threw out that agency rule, leading the Labor Department to launch an appeal.

The Labor Department argues that statute gives the agency the authority to define home care employees.

Attorney Maurice Baskin, representing the industry groups, said the department’s rule contradicts that argument because it regulates employers instead of employees.

“But you can make an explicit link between employers and the employees who are hired by those employers,” Judge Sri Srinivasan said.

Following the arguments, labor rights advocates were optimistic the court will reinstate the rule, which was originally set to take effect Jan. 1 this year.

“The reality is so many of these workers are doing this for a living as some of the discussion focused on in the arguments today,” said Ariela Migdal, of the ACLU Women’s Rights Project. “They aren’t just stopping by to say ‘Hi.’

“They are working really hard all day and they’ve been doing so without basic wage protections, and the reason for that was this long ago exclusion of women of color doing domestic work in other peoples’ homes,” she added.

Migdal said it’s time to get rid of that exclusion. 

“We hope and believe the court will be open to that,” she said.

In Thursday’s case, two of the judges hearing the case — Srinivasan and Pillard —  were nominated to the court by Obama. Judge Thomas Griffith was nominated by Republican President George W. Bush.