Letter To Hilda Solis, Secretary, Department Of Labor

Letter

In a letter to U.S. Department of Labor (DOL) Secretary Hilda Solis, a group of 15 senators led by Senator Tom Harkin (D-IA) today encouraged the Department to use its broad authority to interpret the Fair Labor Standards Act (FLSA) to extend wage and hour laws to home health care workers.

Though most domestic workers are covered under FLSA, an exemption to that law has been interpreted by the DOL to exclude home care workers. Today marks the two-year anniversary of a Supreme Court ruling that upheld the Department's interpretation, making clear that the Department has broad authority to interpret FLSA.

"In the three decades since the exemption was created, the numbers of home care workers and their responsibilities have expanded dramatically as the population has aged and more and more people are choosing long-term care services in their homes rather than in institutions. Home care, increasingly, has become not casual work performed by a friend or family member but a full-time regular type of employment," wrote the lawmakers. "It is critical that these professional workers, who provide essential services to our nation's elderly and disabled, have the same right to minimum wage and overtime pay as enjoyed by other workers."

The full text of the letter follows:

June 11, 2009

Honorable Hilda Solis
Secretary, Department of Labor
200 Constitution Avenue NW
Washington, DC 20210

Dear Secretary Solis;

As you know, today millions of home care workers provide critical care and support to older Americans and persons with disabilities. These workers provide physically and emotionally demanding and often life sustaining care. They cook, bathe, feed and care for the everyday medical needs of people who cannot take care of themselves. In doing so, they ensure that individuals can maintain a degree of independence and continue to live in the privacy and comfort of their own homes.

While these workers - most of who are women and the often sole breadwinners for their families - perform a critical job, home care employees receive low pay, an average of just $9 an hour, and minimal to no benefits. Evelyn Coke, who took a case all the way to the Supreme Court, spent two decades working more than 40 hours a week caring for others. Yet, when she suffered from kidney failure, she could not afford a health care worker to take care of her. Although Congress, in 1974, expanded the Fair Labor Standards Act (FLSA or the Act) to cover most domestic workers, the Department of Labor (DOL) has interpreted a narrow exemption Congress provided for "companionship services" to exclude all workers, including those employed by a third party, who provide in-home care for elderly or disabled people from the FLSA's wage and overtime protections.

The Supreme Court, in 2007, upheld DOL's interpretation in Long Island Care at Home v. Coke. In doing so, the Court recognized the Department's broad authority to issue rules that determine the scope of the exemption. We strongly urge you to use this broad authority to issue new rules that cover home care workers under the FLSA to ensure that home care workers have the same protections other workers enjoy.

Congress enacted the narrow "companionship services" exemption to address concerns that the FLSA would be extended to cover services teenagers, friends and neighbors provided occasionally or informally, such as a babysitter. A professional caretaker is simply not the type of informal and casual relationship that Congress sought to exempt.

In the three decades since the exemption was created, the numbers of home care workers and their responsibilities have expanded dramatically as the population has aged and more and more people are choosing long-term care services in their homes rather than in institutions. Home care, increasingly, has become not casual work performed by a friend or family member but a full-time regular type of employment. It is critical that these professional workers, who provide essential services to our nation's elderly and disabled, have the same right to minimum wage and overtime pay as enjoyed by other workers.

Finally, as our population ages, the demand for the critical services professional home care workers perform will only increase. Yet, there is already a shortage of qualified home care workers and there is a high turnover in the field - when workers have their own families to take care of, it is hard to attract and retain qualified and hard working people when they lack minimum wage and overtime protections. Our ability to meet our nation's long term care challenges depends largely on a strong workforce of home health aides and one way to ensure that is to ensure these critical workers have FLSA protections.

You indicated at the time of your confirmation a willingness to work to develop a regulation that will close this loophole for thousands of low wage workers, primarily women, who are doing difficult, dangerous, yet extremely important work. It would be helpful if you would share with us what steps are being taken to address this problem, and discuss with us how we can be of assistance in fixing it. Thank you in advance for your attention to this injustice.
Sincerely,

Tom Harkin Edward M. Kennedy
Jeff Bingaman Patty Murray
Chuck Schumer Robert Menendez
Herb Kohl Arlen Specter
Jeff Merkley Robert P. Casey, Jr.
Daniel K. Akaka Maria Cantwell
Kirsten E. Gillibrand Mark Udall

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