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STATEMENT by Robert Espinoza, PHI Vice President of Policy, on the U.S. Court of Appeals for the DC Circuit Arguments on Home Care Association of America v. Weil, the U.S. Department of Labor and Home Care Worker Protections

May 7, 2015

"Today, the U.S. Court of Appeals for the D.C. Circuit heard arguments on whether the U.S. Department of Labor has the authority to extend minimum wage and overtime protections to nearly 2 million home care workers and, given this sector's growth, millions more in the upcoming decades.

"Whether it's the care we provide, the care we receive, or the care we coordinate for our parents and loved ones, this federal court case regarding wage protections for home care workers affects all of us.

"We trust that the federal court system will validate the authority of the Department of Labor to extend these long-overdue protections to home care workers. For more than 40 years, home care workers have been excluded from essential protections based on an outdated understanding of 'companionship' and an antiquated meaning of home care delivery. It's time to correct this wrong.

"Today's home care worker provides a vaster, more complicated array of practical and clinical supports that require hard skills and ongoing training — in a home care industry comprised of more than 30,000 home health care agencies and more than 67,000 agencies providing services for older people and people with disabilities. For-profit franchises are the fastest-growing segment of this $100 billion industry.

"We know that poor job quality and high-turnover rates among home care workers are driving the labor shortage responsible for our current caregiving crisis, which both diminishes our quality of care and impoverishes home care workers.

"As the number of people wanting long-term services and supports in their homes continues to skyrocket, we need a multi-faceted, national response that transforms long-term services and supports and acknowledges that strengthening the direct-care workforce creates a more equitable and reliable system of care."

Background

In Home Care Association of America v. Weil, several home care trade associations and the International Franchise Association are challenging the authority of the U.S. Department of Labor (DOL) to redefine the Fair Labor Standards Act companionship exemption. In late December 2014 and early January 2015, in two rulings, Federal District Court Judge Richard Leon ruled in favor of the industry and vacated the DOL's Final Home Care Rule, which extended federal labor protections to the vast majority of home care workers.

In 1974, when FLSA was extended to most domestic workers, home care aides were excluded under the "companionship exemption," which applied to both teenage babysitters and "companions to the elderly and infirm."

In 2007, the U.S. Supreme Court in Long Island Care at Home v. Coke ruled that the exemption was legal, but that the DOL had the authority to redefine companionship services. The Obama administration committed to revising the exemption in 2011 and published the new rule on October 1, 2013. In an unprecedented step, the administration allowed for a 15-month grace period prior to implementation in order to give state Medicaid programs and employers time to assess their programs, make adjustments, and avoid disruption to services for elders and people with disabilities.

Home health aides and personal care aides — the two home care occupations tracked by the Bureau of Labor Statistics — will create over one million new jobs over the decade 2012-2022, more than any other occupational grouping. However, already the poor quality of home care jobs is making it difficult for home care employers to recruit new workers. By setting a wage floor and legitimizing the work of millions of women who provide home care services, the new DOL rule is a first step toward strengthening and stabilizing this crucial workforce.

Resources

PHI has extensive resources on the home care workforce:

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PHI (Paraprofessional Healthcare Institute) works to transform eldercare and disability services. We foster dignity, respect, and independence — for all who receive care, and all who provide it. The nation's leading authority on the direct-care workforce, PHI promotes quality direct-care jobs as the foundation for quality care (www.PHInational.org).

Deane Beebe, PHI Media Relations Director, 646-285-1039; dbeebe@phinational.org

Karen Kahn, PHI Communications Director, 718-928-2035; kkahn@phinational.org

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