US Supreme Court Says Home Care Workers Not Entitled to Fair Labor Standards Act Protections

One June 11, 2007 the United States Supreme Court ruled that the Department of Labor’s interpretation that excludes home care workers from protection by the Fair Labor Standards Act is constitutional, thereby reversing a lower court’s decision in favor of  home care aide Evelyn Coke, in the case of Long Island Care at Home & Osborne vs. Evelyn Coke. The Supreme Court’s ruling ensures that thousands of direct care workers in the fastest growing sector of long-term care will continue to receive low wages and few benefits.

The ruling heightens the urgency of the nation’s long-term crisis of high overturn rates in the industry with thousands of workers in the fastest growing industry receiving low wages and few benefits with an ever expanding demand for their services by elders and people with disabilities.

This case illustrates the need for united voices and broad coalitions that come together to advocate for direct care workers to be treated with dignity and respect. Let’s gather our voices together and show our leadership on this issue, uniting our constituencies to improve our long-term care system.

There are no easy solutions to this problem, and any strategy will take time. This is a signature issue that the DCA can use to build coalition support among all three constituents, because it will take a great deal of effort to make the necessary changes. It is a funding issue, but it is also a values issue: As John Booker pointed out, the term “companionship” grossly misrepresents the health care goods and economic value that home care workers provide to our elders, seniors and consumers, not to mention our long-term care system.

 Advocacy strategies

There are three possible strategies:

1. National legislative change. To be effective, any national legislative effort may need to wait for a new White House administration.
2. State legislation (in states not already offering higher protections than the federal level) 
   At the state level, worker associations should determine where their state stands on the home care worker issue. As Steven Dawson pointed out, some states in fact offer higher protections than what the federal rules provide for. State associations can take this issue on and work to ensure that their states do not follow the federal rule. For example, Wisconsin does offer better protection for workers than the FLSA. Two years ago, there was an effort in the legislature to change Wisconsin law to parallel the FLSA for home care agencies, but the governor vetoed it due to concerted advocacy by consumers and workers.
3. Working directly with the U.S. Department of Labor.
   One last option is contained in the Supreme Court’s decision: Engaging the Department of Labor to begin the process of enlightening public policy leaders and starting an effort to change the Court’s view on home care and direct care as a whole.The Supreme Court’s decision is solely based on its principle of giving deference to how federal agencies decide to implement generally worded laws and “fill gaps” left in legislation. Here, the Supreme Court relied heavily on an “advisory memorandum” issued by the Department of Labor after Ms. Coke had won her lawsuit! The Supreme Court used mainly the Department of Labor’s “Advisory Memo” to support its decision.

   It is hard to say if the Department of Labor issued the memo to stem the very real economic impact that authorizing overtime pay for the thousands of home care workers across the country would have on the home care industry and the consumers that receive these services. It is likely that small employers and the consumers that receive these services would have to cut services drastically unless states and counties step in with substantial additional funds to continue the services.

   We all know that home care workers are indeed working overtime in some cases and not getting paid for it. It is also true that state budgets are stressed for funds and those consumers in many states are on waiting lists for services.