The U.S. Supreme Court is considering an appeal of a strong appellate court decision that ordered employers to pay overtime to homecare workers employed by employment agencies. That ruling was precisely the outcome AARP urged in its prior “friend of the court” brief in Coke v. Long Island Care at Home and the brief just filed in the Supreme Court.
At issue specifically is whether home health aides, employed by an agency, are entitled to federal minimum wage, and the protection of federal overtime laws under the federal Fair Labor Standards Act. In the Coke case, employers argued that home healthcare workers fall under the exception enacted in 1974 to exempt babysitters and companions employed directly by the person needing care or by his or her family (not third party employers) from overtime pay requirements.
AARP Foundation Litigation attorneys filed AARP’s “friend of the court” brief in support of the workers in the case below in the U.S. Court of Appeals for the Second Circuit, as well as in a similar case in the Eleventh Circuit because the issue of appropriate and adequate compensation directly relates to the availability of necessary workers and quality of care delivered to people receiving home healthcare services. There is a critical and growing need for home health aides and a current and even greater projected shortage of these workers in the near future. Wages and benefits obviously play a vital role in the ability to recruit and retain conscientious workers who provide quality care.
Direct care workers, including home health aides, are the paraprofessionals who provide the bulk of paid long-term care. They work in diverse settings, including private homes, adult day centers, assisted living residents, and nursing homes. The more than a million direct care workers in the United States provide services that may include assisting with personal care, providing oversight for people with cognitive or mental impairments, observing and reporting changes in a client’s condition, administering medications and monitoring vital signs, preparing meals and housekeeping, as well as providing comfort and companionship.
Most home health aides are women supporting children, who perform difficult work for low pay. Many handle high caseloads, are provided with minimal training and few opportunities for advancement. It is not surprising, then, that turnover among personal and homecare aides is extremely high – averaging between 40 and 50 percent on an annual basis. High turnover and workforce instability affects clients directly in the quality of care they receive and in outright disruptions of service delivery.
The aging of the American population as well as federal interest in providing alternatives to institutionalization means that the need for direct care workers is expected to increase markedly in the coming years. In 2000, 13 million Americans received some form of long term care, the bulk of which was provided by direct care workers. This number is expected to skyrocket. The New York State Department of Labor estimates that in the New York Cit y area alone, an additional 17,000 personal and homecare workers will be needed by 2012 in order to meet demand – an increase of nearly 33% above today’s levels. Already, almost every state in the country has reported a critical shortage of direct care workers, resulting in a “care gap” that leaves many older and disabled people with inadequate or no source of care.
AARP’s brief points out that when Congress enacted the Fair Labor Standards Act Amendments that carved out the companion exemption in 1974, the homecare industry was in its infancy. No one foresaw the development of this market for homecare workers and, AARP argues, therefore the exemption could not possibly have been intended to cover such a large class of workers that was only then developing. Extending this limited exception to cover homecare workers would not only be extending a Congressional exemption beyond where it was intended, but would have serious detrimental effects to older and disabled Americans across the country.
Quality and affordable homecare is an important issue for AARP members and people with disabilities because most chose to receive home services as an alternative to institutionalization.
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