After legal defeats, an uncertain future for low-wage home care

The 2 million in-home workers who tend to the nation's elderly and disabled have had a tough year in the courts. First there was Harris v. Quinn, the June 2014 Supreme Court decision widely seen as undermining home care unions. Next came a pair of rulings from the federal trial court in Washington, D.C. — the most recent of which came down Wednesday — invaliding a new Department of Labor (DOL) regulation that would have extended minimum wage and overtime rights to caregiving "companions."

All three opinions reflect the peculiar history of care work under federal employment and labor laws. The New Deal-era Fair Labor Standards Act (FLSA) and National Labor Relations Act specifically excluded domestic workers, who were then predominantly African American women. Their status as "employees" has been contested ever since. Although Congress amended FLSA in 1974 to provide the minimum wage and overtime guarantees to certain categories of home-based workers, it took pains to exempt ostensibly low-skilled elder companions — the carve-out Obama's labor department had hoped to cure. And in last year's Harris case, the high court declared government-paid home health aides “partial public employees," thereby prohibiting their unions from collecting mandatory dues. 

According to many caregivers, worker advocates and unions, the recent holdings of the Supreme Court and D.C. district court will lock in low wages and poor working conditions. (The DOL has not yet said whether it will appeal.) But care-workers opposed to unions and private employer agencies such as the National Association for Home Care & Hospice, a plaintiff in the most recent case, applaud the judiciary for protecting ‘employee choice’ and containing costs for those with aging and ailing relatives. In today's aging America, nearly 40 million people provide unpaid elder care to family and friends.

“I think the decisions [throwing out the DOL regulation] are beneficial for everyone in the industry. Now costs are going to be consistent, kept down, so [clients] don’t have to move into nursing homes,” said Gena Usenheimer, an attorney with Seyfarth Shaw who represents private home care agencies. She added that maintaining the regulatory status quo also benefits employment agencies and even home care workers whose “hours could have been cut” if overtime requirements had been imposed.

Beneath the legal thicket of union rules and regulatory authority are more elemental queries. When does caring constitute work? How much are we willing to pay for it? Is the caring economy a zero-sum game — that is, does improved compensation for workers mean depriving families, the elderly and the disabled of much-needed services?

For some 30 years, the Service Employees International Union (SEIU) has organized workers in home-based settings, a task now complicated by Harris. Yet even in states with longstanding collective bargaining agreements, unionized caregivers only earn about $10 per hour (plus paid time off and health benefits), said Helen Schaub, policy director for SEIU 1199 United Healthcare Workers East. “These are workers, and they should not be treated any differently than any other workers. And in many instances, it’s possible to schedule workers so companies are not incurring huge amounts of overtime.”

The legal setbacks to home care organizing have contrasted sharply with recent wins by the fast food movement in the courts and on the streets. The SEIU, which funds both campaigns, has attempted to connect them under a low-wage umbrella. But caregivers have not enjoyed the same attention as fry cooks, perhaps due to the intimate, less visible nature of their work. Or, some say, because this feminized labor — like teaching and nursing, which took decades to professionalize — has been undervalued.

Activists vow to keep focused on the caring economy. “We want [home-based] work recognized," said Rosana Reyes, who was once a paid family caregiver and is now communications manager for the National Domestic Workers Alliance. "Work is work, and these exclusions have been going on far too long.”