SundayReview | EDITORIAL
Forty Years of Servitude, and Counting
Labor Rights for Home Care Aides Are Delayed Yet Again
An enduring injustice was supposed to end on Jan. 1. That was the effective date for new rules by the Labor Department that would have required employers of home care aides for the elderly and disabled to pay at least the federal minimum wage and time and a half for overtime. Specifically, the new rules would have ended a federal regulation from 1974 that labeled home care aides "companions," a designation that lets their employers — generally, for-profit agencies — ignore basic labor protections.
Justice, however, has been delayed. The Jan. 1 effective date was postponed late last year when a federal judge, Richard Leon, said he first had to issue a decision on a challenge filed by the International Franchise Association and other home care employer groups. On Jan. 14, Judge Leon overturned the new rules, on the highly debatable ground that only Congress can remove the companionship label. The Labor Department has filed an appeal, but the issue won't be resolved until June, at the earliest.
Judge Leon's decision is at odds with a unanimous Supreme Court decision in 2007 that raised many questions about how to change the companionship designation and concluded that "Congress intended its broad grant of definitional authority" to the Labor Department "to include the authority to answer these kinds of questions."
In an even more indefensible part of his decision, Judge Leon agreed with the industry position that home care workers are akin to occasional babysitters, who are designated "companions" (and rightly so) under the labor law. A babysitter, Judge Leon wrote, "often is responsible for feeding, bathing and changing the clothes and diapers of the child" as well as "regularly" preparing food and driving children to places they can't get to on their own.
But that does not make home care a form of babysitting, because performing those activities for an elderly adult or a disabled child is not the same as doing so for a healthy toddler. In the decades since the companionship designation took effect, home care has become a multibillion-dollar for-profit enterprise, employing mainly low-income women, minorities and immigrants — a work force that is vulnerable to exploitation.
The new rules would ensure that home care agencies follow the same labor rules that apply to virtually every other business. They also set out clear rules for families that hire home care aides on their own rather than through an agency; such workers need not be paid for time spent sleeping or on breaks, but they are entitled to the minimum wage and overtime if most of their work involves activities other than companionship.
In addition, and contrary to the claims of opponents, the rules will not make home care unaffordable. Several states already require the minimum wage and overtime for home care workers, without adverse effects on access and with positive effects on quality and continuity of care.
In and of itself, Judge Leon's decision may turn out to be nothing more than a nuisance and a delay tactic that will be overturned on appeal. Then again, it has taken more than 40 years to get this far in the fight for labor rights for home care workers. One can only hope that justice delayed for six more months will not turn into justice denied for another 40 years.