This is the Biggest Labor Rights Issue Of Our Time

The Fair Labor Standards Act, 1938 (FLSA)as it currently stands, does not protect domestic home care workers within its ambit. With around 2.5 million people employed in this sector, mostly people of color, and women, this exemption is the greatest labor rights issue facing the United States.

On the 50th anniversary of the March on Washington for Jobs and Freedom, one of the demands of the protesters is yet to be satisfied, to include the areas of employment currently excluded by  the FLSA. Although initially the FLSA did make gender-neutral provisions, with minimum wages, maximum hours and overtime pay, it did not protect the rights of domestic workers.

However, in 1974, domestic workers employed by private households were included within the scope of the FLSA, with an exemption clause. Under section 13, employees engaged "to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" are exempt from protection under the Act, and are not eligible for overtime pay. In 2007, in Long Island Home Care v. Evelyn Coke, the Supreme Court held that employers were acting in accordance with the law if they failed to pay overtime wages to domestic workers caring for the elderly, under the companionship exemption. The Court also ruled that the Department of Labor could reinterpret the exemption to grant protection to home care aides.

Home care workers who care for the elderly are exempt from protection because they provide companionship. This seems to suggest that because companionship is an informal, intangible relationship, it cannot be considered a service like other domestic work. Nannies for example, are fully protected because toddlers need care, not companionship. This sort of disparity seems to indicate toward larger discrimination, when considered with the fact that most home care employees are people of colour and women. 

It is ironic that, under section 13, the fact that home care employees reside within the household is the criteria that denies them overtime pay. The fact that these workers stay away from their homes and families, dedicate their lives to providing round the clock care to aging citizens should deem them worthy of more than the average remuneration for domestic work. Instead, domestic home care workers are paid an average of $9.70 per hour. Around 40% are paid such meagre wages that they rely on food stamps and Medicaid. 

Many home care workers are quitting their jobs because they cannot make ends meet despite the fact that they derive satisfaction from caring for the elderly and disabled. Providing companionship is not a charity that these workers are indulging in to be kind to the elderly. They are providing a service like any other, and should be treated thus. A service which comprises long hours, manual work, specialized care and constant attention. A ridiculous and romanticised notion of companionship, especially before the law, is denying financial and social security to a large group of citizens. 

The Baby-Boomer generation is on the brink of aging, and the demand for home care for the elderly is predicted to double within this decade. The ramifications of the companionship exemption could be disastrous for labor rights. In 2011, President Obama promised to change the companionship exemption, and the proposed changes are currently under review by the White House Office of Management and Budget and the Department of Labor. Here's hoping that the FLSA is amended accordingly. It's been long overdue.  

You can sign a petition asking President Obama to amend the FLSA here.

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Mrinalini Shinde

Mrinalini is a final year student of law, interested in gender and sustainability issues. She is currently a Research Fellow at the Centre for Environmental Law, Education, Researcha and Advocacy and a volunteer with Student Energy. She enjoys green tea, Shakespeare and martial arts in inordinate amounts. She is currently located in Bangalore, India.

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