Evelyn Coke, Home Care Aide Who Fought Pay Rule, Is Dead at 74

By DOUGLAS MARTIN New York Times Published: August 9, 2009 Year in and year out, Evelyn Coke left her Queens house early to go to the homes of elderly, sick, often dying people. She bathed them, cooked for them, helped them dress and monitored their medications. She sometimes worked three consecutive 24-hour shifts.

Evelyn Coke, April 2007

She loved the work, but she earned only around $7 an hour and got no overtime pay. For years Ms. Coke, a single mother of five, quietly grumbled, and then, quite uncharacteristically, rebelled. In a case that reached the Supreme Court in 2007, Ms. Coke sued to reverse federal labor regulations that exempt home care agencies from having to pay overtime. “I hope they try to help me because I need help bad,” she said in April 2007 after listening to oral arguments. She had stopped working after being hurt in a car accident six years earlier, and by then used a wheelchair. The court unanimously rejected her claims, saying that Congress had given the Labor Department explicit authority to include home care workers in minimum wage and overtime protection and the agency had chosen to exclude them. “I feel robbed,” Ms. Coke said in an interview with The Associated Press. “I feel glad it’s come to everybody’s attention; people are supposed to get paid when they work.” Ms. Coke’s health deteriorated until she died of heart failure on July 9, in Manhasset, N.Y., her son Michael Findlay said last week, after returning from his mother’s burial in Jamaica. He said he believed a serious bedsore had contributed to her death, and recalled the many people she had helped with bedsores. Ms. Coke was 74. As a symbol, Evelyn Coke remains alive as both Congress and the Obama administration review regulations that carry out amendments to a 1938 law on wages. In June, 15 senators and 37 House members wrote to Hilda L. Solis, secretary of labor, urging her to eliminate the exemption for home attendants. “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,” the senators wrote. “Yet, when she suffered from kidney failure, she could not afford a health care worker to take care of her.” Ms. Solis responded that she intends to “fulfill the department’s mandate to protect America’s workers, including home health care aides, who work demanding schedules and receive low wages.” Nearly half of home care workers — overwhelmingly low-income, female and minority — rely on food stamps or other public assistance. The 1938 Fair Labor Standards Act required employers to pay a minimum wage and overtime pay for those who work more than 40 hours a week. In amending the law in 1974 to extend protection to domestic employees like maids and cooks, Congress specifically excluded baby sitters and “companions” for the old and infirm. They were exempted because many were thought to be friends, relatives and neighbors. The law did not mention aides employed by third parties. When the Labor Department wrote regulations to carry out the legislation in 1975, it strongly considered extending wage protection to home aides employed by third parties. But it eventually decided to exempt them. The Clinton administration, in its next-to-last day in office, proposed rules to give such employees overtime and minimum wage protection, but the Bush administration scrapped the proposal, saying it was too costly. Ms. Coke’s suit questioned whether Congress really intended to exempt aides employed by a third party, and whether the interpretation of the law by the Labor Department was correct. The Supreme Court ruled on the narrower ground that the department had undisputed authority to issue rules. But much had changed since the 1970s legislation and regulation. Home care agencies are a growing industry, expected to employ nearly two million aides by 2014. The Labor Department says the only faster-growing occupation is systems and data analysts. The agency that last employed Ms. Coke, Long Island Care at Home of Westbury, N.Y., said in court that it had followed state law on wages and overtime. It said it would sustain “tremendous and unsustainable losses” if forced to pay overtime. New York City submitted a friend-of-court brief estimating that overtime payments to home aides would increase Medicaid costs by $250 million a year and warned of the possibility of big service cuts. “In the worst cases, some clients, especially those with high hour needs, might no longer be able to be serviced in their homes and might have to be institutionalized,” the city said in a brief filed jointly with the New York State Association of Counties. Ms. Coke was born in Westmoreland, Jamaica, on Dec. 25, 1934. Her first jobs in Jamaica were in home care, and she stayed in the field when she came to the United States in 1970. She lived in Florida and Maryland before settling in New York City. By 1973, she was able to send for her children. Even without overtime, her savings grew as a result of frugality and many, many hours of work. In 1980, she bought a wood-frame house in Corona, Queens, where she lived until she died. Ms. Coke was hit and injured by a car in 2001, and saw a lawyer. When he examined her pay stubs, he recognized what she had been privately complaining about for years: her pay stubs showed she sometimes worked 70 hours a week with no overtime. He invited her to bring a test case, which she filed in 2002. The Service Employees International Union later took it over. The union has made the broader argument that inadequate pay was fueling turnover rates among aides of from 40 to 60 percent annually. When Ms. Coke became old enough for Medicare, she got the medical checkups she had skipped when she had no medical insurance from her job and was ineligible for Medicaid, the insurance program for poorer people. Doctors found that her kidneys were failing. She ended up having dialysis three times a week. Ms. Coke never married. In addition to her son Michael, she is survived by her sons Dean Roy Cox and Leroy Cox; her daughters Myrna Porter and Eunice Mahorn; her sisters Olive and Sharon Coke; and six grandchildren. The Associated Press reported that despite her claims of unfair treatment, Ms. Coke did not become bitter. “I don’t regret taking care of old people,” she said. The letter to Secretary Solis, mentioned above, was the work of the Direct Care Alliance! We did it, got 15 senators and 37 members of the House to sign on.

I admire Ms. Coke and her determination to fight for what she saw as an injustice to Home Care Workers. We must continue the fight until we win fair wages for this crucial workforce. Helen

Poor Wages and Benefits

Working for food stamps Like other forms of historically female care work, direct care was underpaid and undervalued from the start, seen as unskilled “women’s work.” The women who did it – predominantly women of color – were expected to live in genteel poverty, or assumed to be earning “pin money” to supplement their husbands’ earnings. Those assumptions were built into the Medicaid and Medicare reimbursement systems that fund most long-term care, tying direct care worker earnings to the fate of two programs already under intense pressure to reduce costs in these tough economic times. As a result, direct-care workers – about 90 percent of whom are women – struggle to support themselves, let alone their dependent children, on their paltry wages. Many have to take a second or even third job to make ends meet. The national average for all direct care workers is less than $10 an hour, and about a third of the home health and nursing home aides who are single parents depend on food stamps. The situation is worst in home care – which is the fastest-growing type of long-term care service, and the one most consumers prefer. Personal care and home care aides average just $8.54 an hour, and their annual raises aren’t keeping up with inflation. A recent report found their wages fell by 4 percent between 1999 and 2006, after adjusting for inflation. Erratic hours and being ineligible for federal minimum wage and overtime protection also contribute to keeping many home care workers perilously close to the poverty line. Health care workers without health care In a particularly cruel irony, direct care workers often do not get health insurance through their jobs, even though their work is crucial to maintaining the health of the people they care for. Approximately 30 percent have no health insurance. That’s about twice the uninsurance rate of the general public. A lot of factors contribute to this crisis. Some workers are hired directly by the people they assist, who cannot offer health insurance or worker’s compensation. Some work for small businesses that can’t afford to subsidize high group insurance rates. Some can’t book enough hours to qualify for the company plan, which may offer insurance only to employees who work full-time. And many simply can’t afford the premiums and copays. It’s not as if direct care workers need health care less than other people. In fact they have higher than average rates of diabetes, asthma, and other chronic conditions – conditions that become much more serious when they go untreated. They also have one of the nation’s highest rates of on-the-job injuries, mostly back and neck injuries caused by lifting people or helping them move from place to place. These injuries often cause permanent impairments and pain that require ongoing medical treatment. Fighting for the right to minimum wage and OT pay The federal Fair Labor Standards Act requires employers to comply with minimum wage and overtime laws – with a few exceptions. A so-called “companionship” exemption was created to cover unskilled, part-time workers such as babysitters who are employed by individuals to work in the home. A controversial ruling by the U.S. Department of Labor (DOL) during the Bush Administration included all home care workers, even those who are employed by agencies, in that exemption. As a result, home care aides are denied the right to minimum wage and overtime protection from the federal government. Evelyn Coke, a home care attendant who worked for many years for an agency in Long Island, New York, challenged that ruling in 2007. Coke took her employer to court, charging that she was owed thousands of dollars in back pay because she was never paid overtime for the overnight shifts she worked. In fact, she was not paid at all for many of those hours (the agency subtracted time that was assumed to be spent sleeping or eating, saying that she would have been doing the same thing if she were in her own home), bringing the average amount she was paid per hour to less than the minimum wage. Her case got all the way to the United States Supreme Court. The court ruled in favor of the agency. The controversial ruling still stands -- but the DCA and its allies have been working to change that. In September 2007, the Direct Care Alliance board passed a resolution declaring that it would work to overturn the ruling. In letters sent to President-elect Obama (PDF) in 2008 and to newly appointed U.S. Secretary of Labor Hilda Solis (PDF) in early 2009, the DCA asked the new administration to reverse the ruling. In April 2009, the DCA organized a trip to DC to ask legislators to include direct care workers in health care reform -- and to sign onto a letter from members of Congress to Secretary Solis that asked the Secretary to overturn the DOL ruling. On May 18, 2009, 37 members of Congress sent the letter to Secretary Solis. Less than a month later, 15 U.S. Senators sent Secretary Solis a letter asking for the same thing. The Senate letter was sponsored by Senator Tom Harkin (D-IA) and signed by Edward M. Kennedy (D-MA), Chuck Schumer (D-NY), Arlen Specter (D-PA), and Robert P. Casey, Jr. (D-PA), among others. The day after receiving the senators' letter, Secretary Solis told an Associated Press reporter that her department was looking into whether the exemption should be overturned. Related materials DCA policy brief on the Coke case DCA fact sheet on the Coke case

Speeches about the Coke case by graduates of the first Voices Institute National Leadership Program

Be sure to check out the speeches. These are some of the people I spent that incredible week with.

This comes from the Direct Care Alliance.