Kansas City Employment Lawyer Blog

In 1974 Congress added domestic workers to the Fair Labor Standards Act (FLSA), however, those employees that provided "companionship services" were exempted. At that time, the business of providing home care was barely a cottage industry with companions described as "elder-sitters."

Fast forward to present day. In the 37 years since the 1974 change to the FLSA with respect to domestic workers when the companionship exemption was enacted, the home health care industry has grown exponentially. With the baby boomer generation sandwiched between caring for children and aging parents and making a living, the services provided by these agencies are high in demand. It is also these types of services that extend the possibilities for elders to have the freedom to stay in their own homes and remain independent, thus postponing the expensive alternative of an assisted care or skilled nursing facility.

These home health workers provide a very valuable service, that if performed in an assisted living facility or nursing home would be covered by the minimum wage and overtime provisions of the FLSA. As it is, these home health workers are some of the lowest paid jobs. Additionally, due to the nature of the work and its physical demands, these workers are more prone to injury and are generally not covered by health insurance. The turnover rate is very high, thus making the consistency and quality of care unstable. Most importantly, because they are not covered by the FLSA, their employers are not required to pay them a minimum wage or overtime pay for all hours worked in excess of 40 in a work week.

A bill has recently been introduced by Rep. Linda Sanchez (D-CA) and Sen. Robert P. Casey, Jr. (D-PA) on June 23, 2011. The Direct Care Job Quality Improvement Act [S. 1273/H.R. 2341] promises to provide the framework to allow for higher valued home care workforce.

This bill should be considered in the long run as a vehicle that could provide government savings. It is estimated that more than 75% of long-term care is financed by federal programs. If the value of these home health care jobs were protected and promoted by FLSA rights, the quality of home health care would increase due to a more stable and trained workforce, which would, in turn, provide savings to our health care system by postponing the use of nursing homes and decreasing hospitalizations. In addition to minimum wage and overtime provisions, the proposed bill would implement data collection and reporting requirements and provide for grants to states in support of recruitment, training and supply of these workers.

On the other side of the issue Paul Hogan, who is chairman of Home Instead, a very large company that employs more than 65,000 caregivers in the United States, is seeking a Congressional sponsor for another bill. This competing bill would enforce the companionship exemption in the FLSA and would go another step further by preventing any future administration from changing the rules. "We're asking that the decision-making be removed from the Department of Labor," Mr. Hogan said.

Sources:
A Fair Wage for Home Care Workers, NYTimes.com, July 20, 2011.

Fair Pay for Quality Care, Direct Care Alliance, Inc.

Hospitals, nursing homes and other health care providers often do not pay employees overtime under the "8 and 80" rule that can apply to health care employees. Some health care employers, however, apply the "8 and 80" when it is unlawful to do so. The result is that affected employees are entitled to back pay for the unpaid overtime premium.

Federal wage and hour laws generally require an employer to pay an overtime premium to an employee for work in excess of 40 during a workweek. There is, however, an "8 and 80" exception that can apply in very limited circumstances to certain health care employees. If all of the requirements of the "8 and 80" rule are satisfied, an employer can pay an employee straight time for 80 hours worked during a two-week period, even if the employee worked more than 40 hours during one of the two weeks. Absent the "8 and 80" rule, the general rule would apply so that the employee would be entitled to time and a half for hours worked in excess of 40 during any workweek.

The "8 and 80" rule, however, applies strictly under specific conditions. First, only certain health care providers, such as hospitals and other in-patient facilities, are allowed to use it. Second, the employer must expressly inform the employee that the employer will use the "8 and 80" method of pay, and the employer must utilize it consistently, not just during weeks the employer can comply with its strict requirements. Third, the "8 and 80" rule only applies to 8 hour work shifts and to 80 hours during a two-week period. Thus, if the employee works any 12 hour shifts, or double-shifts of 16 hours during any day of the workweek, the "8 and 80" exception to overtime does not apply, and the employee is entitled to time and half for all hours over 40 during that workweek. Also, even if the "8 and 80" rule applies, the employee is entitled to the time and half overtime premium for all hours in excess of 80 during the two-week period.