Posted on14 January 2010.
Western Missouri District Court, Kansas City, MO
Supportive services workers who care for people with Medicaid in community-based residential care settings are not exempt from federal minimum wage and overtime requirements, confirmed a U.S. district court in Western Missouri.
The case of Solis v. Firstcall Staffing Solutions, Inc. (pdf) involved 10 developmentally disabled consumers sharing four dwellings in an Independence, MO, apartment complex. The employer, Firstcall Staffing Solutions, had argued that because the community-based care facility had been set up as individual apartments, it should be treated as the recipients’ homes.
Under the Fair Labor Standards Act’s “companionship” exemption, workers providing certain services in a consumer’s private home are currently exempt from minimum wage and overtime protections.
Backs Longstanding DOL Position
The court agreed with the U.S. Department of Labor (DOL) that the community-based residential setting did not qualify as a private home.
“The DOL and most federal courts have taken the position that the companionship exemption does not apply in such settings,” said Paul Sonn of the National Employment Law Project.
Community-Based Care Not Affected by Possible Exemption Reforms
“Because service workers employed in community-based residential care settings are already covered by the Fair Labor Standards Act’s minimum wage and overtime requirements, they would not be affected by possible reforms to the companionship exemption,” Sonn continued.
PHI and other advocates have called on DOL to narrow the exemption in order to extend wage and overtime protections to a greater number of home care workers.
“While we await Department action on limiting applicability of the companionship exemption to agency-employed home care workers, it is heartening to see DOL’s vigilance in combating efforts to extend the exemption more broadly and deprive direct-care workers of their rightful wage and overtime protections,” said Steve Edelstein, PHI’s National Policy Director.
PHI Blog - PolicyWorks
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The Federal Department of Labor (DOL) is proposing changes to the Fair Labor Standards Act (FLSA)to Domestic Service which, if put into effect, may seriously reduce the take-home pay of countless numbers of homecare workers such as I and make the lives of the people with disabilities we assist less manageable.
The changes would require the payment of minimum wage to homecare workers and mandate that homecare workers must receive time and a half pay for every hour over 40 hours per week of work done. Medicaid would bear most of the burden.
This sounds like it would be a major victory for me and my fellow homecare workers, right? But there’s one big problem: where is the money to pay for this? If the law says we can’t work without minimum wage or time and a half pay but the money’s not there, then we won’t be allowed to work those hours!
That means, instead of increasing our take-home pay, the proposal will slash all hours beyond 40 per week of our pay. For me, that’s 416 hours and $4,742.40 per year I will lose.
My fellow workers who currently put in 84 hours per week will suffer a 44 hour loss — over half their pay!
As a result, many workers will be forced to seek out second or third or forth jobs to make up the loss.
And, for the people we assist, their lives will be harder. They will either endure a reduction in homecare hours or will have to seek more workers. That means more poorly paid people in their homes with even less incentive to do a good job. Many people with disabilities have a hard enough time right now managing their assistants. The added strain will cause many to just give up and move into nursing homes.
Who benefits from this proposal? Certainly the nursing home industry. Also the homecare unions which will receive more dues-paying members even as all the members’ average standard-of-living declines. Even the most poorly-paid worker in a closed shop is required to turn over at least $25.10 per month in union dues. That’s a windfall for union coffers even as the average worker suffers.
What can we do? We can demand that, before this proposal is put into effect, funding for it be allocated and in place to begin payment immediately. Finding this money won’t be easy. The federal government is 15 trillion dollars in debt (that’s $15,000,000,000,000: a lot of zeros!) The states and municipalities aren’t doing much better. But, until we are shown the money, this proposal is nothing but a shell game which promises a reward but leaves us worse off than before.
I spoke with David Ward, Director of Policy and Planning at the Direct Care Alliance who admitted that “a few workers will have to make a small sacrifice.” Quite an understatement!
Please, my brothers and sisters, before too many of you fall for this pie-in-the-sky scheme, before the DOL proposal is shoved onto us, we must see the money.
Contact the Dept. of Labor which is threatening to make this change at 1-866-4-USA-DOL (1-866-487-2365), a toll-free number. Tell them, before they end the minimum wage and overtime exemption, first SHOW US THE MONEY!
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