U.S. Department of Labor should enact new domestic worker regulations, already.

Berenbaum Menken is leading the fight to get home health aides, who have a tough and often thankless job, the wages they are entitled to by law. We have brought several lawsuits on behalf of home health aides who were not paid the minimum wage for working 24 hour shifts, with two of them filed as class actions - one against Americare and the other filed against New York Health Care, which did business as New York Home Attendant Agency. These cases were brought under the New York Labor Law, because the Federal overtime law, the Fair Labor Standards Act (FLSA), does not cover home health aides, as it is interpreted by the courts right now. This has the important effect of limiting the overtime these workers get, because New York law follows the FLSA as far as exemptions go. To understand why this is, it helps to understand that when the FLSA was originally passed in 1938, all domestic workers were exempt. In 1974, the FLSA was amended to include some domestic workers, but still excluded from overtime domestic workers who resided with their employer, and excluded from both minimum and overtime wages domestic workers who were providing “companionship services” to the elderly or ill. Back in 1974, such “companionship services” were almost always provided on a casual basis and paid for by the person who needed those services, or their family.

Obviously the landscape now is very different: home health aides are trained and certified, and work full-time (or more) for private agencies that receive their funding form Medicaid or other government sources. They also do much more than act as companions - in many cases, their patients depend on them to cook, clean, change their diapers, and take care of every part of their home life. Part of the motivation for these home health aide programs is to reduce Medicaid’s nursing home costs - it costs a lot less to care for someone in their home, if possible, than placing them in a nursing home. But the FLSA still treats these home health aides as if they were a neighbor paid to watch a family member for a few hours.

Now, the U.S. Department of Labor is considering new regulations that would expand the FLSA to cover more home health aides. The proposed regulations would require minimum wage and overtime payments to anyone providing companionship services who is paid by an outside agency - in other words, today’s home health aide would be, finally, entitled to minimum wages and overtime under the FLSA. This should be a no-brainer, since these workers are the some of the most vulnerable and underpaid in the economy. Yet, although the notice and comment period ended in March of 2012, the Department of Labor has not finally enacted those regulations yet. It’s well past time to do that.