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After 75 Years, Minimum Wage Protections Still Elude Home Care Workers

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One of our nation's cornerstone workplace laws, the Fair Labor Standards Act, turned 75 this week. America's roughly 2.5 million home care workers might not be celebrating the anniversary, however. That's because home care workers -- the skilled caregivers who tend to our nation's elderly and disabled in their own homes, and who constitute one of our nation's fastest-growing occupations -- continue to be excluded from FLSA's minimum wage and overtime protections.

What does it mean to be shut out of such basic guarantees? For home care workers, exclusion from federal wage-and-hour protections means being devalued and disrespected. It means working off the clock, sometimes having to wake up throughout the night to care for a client, without pay. It means not getting paid overtime despite workweeks of 80 hours or more. All too often, it means working in poverty: home care workers' average hourly wages are low enough to qualify them for public assistance in 34 states.

The FLSA was designed to address such problems by putting "a ceiling over hours and a floor under wages." The exclusion of home care workers from FLSA -- a result of the so-called "companionship exemption" -- was purely accidental. As explained in a report from the National Employment Law Project, the law's authors had intended to exempt only casual jobs like babysitting, but because the U.S. Labor Department defined "companionship" too broadly, the exemption ballooned to include what is now a highly skilled and professionalized workforce of 2.5 million home care workers.

With baby boomers aging and demand for care rising, home care is now one of our nation's fastest-growing occupations. As home care jobs grow, a gaping hole in minimum wage and overtime coverage threatens to swallow up an ever-greater portion of the workforce.

The good news is that reform is nearly done: the Labor Department is ready to close this loophole so that many home care workers will get the minimum wage protections they so desperately need. The bad news is that the new rules are being held up in the home stretch, thanks to intense last-minute lobbying by industry special interests. Getting these long-overdue reforms across the finish line, to finally restore FLSA's minimum wage and overtime coverage to this large and deserving workforce, will require presidential leadership -- and push.

President Obama is no stranger to the issue. In December 2011, the President personally stood with home care workers and pledged to close the companionship exemption as part of his "We Can't Wait" program to advance important issues. Workers and their allies applauded his announcement and submitted tens of thousands of supportive comments about the proposed rule change. But the final rules have now stalled at the White House's Office of Management and Budget, which missed its 90-day, and then its 120-day, deadline for reviewing and releasing the rules. This delay has left home care workers, most of whom are women, and disproportionately women of color, wondering when and even whether the President will keep his pledge.

Anyone who has ever depended on a home care worker to care for a family member knows how essential and incredibly taxing the work is. Even the White House knows this first-hand. During aTuesday White House event to celebrate the FLSA anniversary, Vice President Joseph Biden praised the workers who cared for his fiercely independent mother as her health deteriorated. As Biden made clear, home care workers deserve the right to minimum wage and overtime at the very least, and certainly much more than that: "It's about decency... It's just that simple," he said. Yet, as he acknowledged, it's also easy to take the workers and their labor for granted. While a home care agency often demands high rates from clients, "it can turn around and pay the workers less than minimum wage." And so, while for-profit home care chains rake in 30 to 40 percent profits in a $70 billion industry, they are driving much of the opposition to the reforms.

Our country cannot afford to wait any longer to fix the companionship exemption. Leaving workers outside the protection of the law has not only depressed wages, but has led to poor morale and high turnover, threatening the integrity of the system just as tens of millions of aging Americans develop a need for home-based care. Rather than saving money, substandard wages have forced 50 percent of home care workers to rely on public benefits, burdening already cash-strapped budgets. Most importantly, this is an issue of fairness. As we celebrate the anniversary of the nation's minimum wage law that was meant to benefit our nation's workers and the economy, let's make sure it reaches those who need its protection the most.