This week, Rep. Linda Sanchez (D-CA) introduced legislation that would extend the federal minimum wage and overtime protections of the Fair Labor Standards Act (FLSA) to most home care workers, improve federal and state data collection and oversight with respect to the direct care workforce, and create a grant program to help states recruit and train direct care workers. Specifically, the Direct Care Workforce Empowerment Act (H.R. 5902) would limit the “companionship services” FLSA exemption to those who work 20 or fewer hours per week.
Section 213(a)(15) of the FLSA exempts from minimum wage and overtime requirements ”any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” In 2007, the U.S. Supreme Court in Long Island Care at Home, Ltd. v. Coke upheld the application of this exemption to home care workers. The Direct Care Workforce Empowerment Act would redefine “casual basis” to mean:
employment which is irregular or intermittent, and which is not performed by an individual whose vocation is the provision of babysitting or companionship services or an individual employed by an employer or agency other than the family or household using their services. Employment is not on a casual basis, whether performed for one or more family or household employers, if such employment for all such employers exceeds 20 hours per week in the aggregate.
Therefore, any nursing aide, home health aide, or personal and home care aide – workers who, according to a press release, make up one of the largest and fastest growing workforces in the country – would be covered under the FLSA so long as they work more than 20 hours per week.
Additionally, this bill would direct the Department of Health and Human Services (HHS) to establish a direct care workforce monitoring program to facilitate data collection about the direct care workforce. The measure would also allocate $25 million to the HHS Secretary to provide grants to states to expand and upgrade their direct care worker training programs; create or improve systems for monitoring and collecting data related to the direct care workforce; and establish or expand recruitment and retention programs.
This bill, which has 28 co-sponsors, has been referred to the House Energy and Commerce Committee.
The Department of Labor (DOL) also intends to address this issue via regulation. Included in the agency’s semi-regulatory agenda are plans to revise the FLSA’s rules governing the employment of home service workers. The DOL is scheduled to release a notice of proposed rulemaking by October 2011.
Update: On August 3, 2010 Sen. Robert Casey (D-PA) introduced a companion bill (S. 3696) in the Senate.
Photo credit: AlexRaths