Florida Nursing Home Lawyer Blog
It should come as no surprise that the quality of care that an elderly person can expect to receive is going to depend on the kind of skill, training and oversight that is expected of employees.
But our North Lauderdale elder neglect attorneys know that for the last four decades, home health aides were essentially treated under the law like glorified babysitters.There was no entitlement to federal minimum wages, regardless of how many hours they put in. Also, they were exempted from overtime pay requirements.
The battle for these protections went all the way to the U.S. Supreme Court, with a longtime New York home health aide arguing that the lack of such protections was a grave injustice not only for workers, but patients as well. Those kind of employment conditions, she argued in Long Island care at Home LTD v. Coke, had the potential to contribute to a decreased level of care. However, the justices ruled against her unanimously, reasoning that the issue was something that would need to be decided by the U.S. Labor Department.
President Barack Obama had promised to make the issue a priority. But with a floundering economy and a continuation of overseas conflicts, the issue took a back seat.
But now, the U.S. Labor Department has acted. No more will home care workers be classified as “companionship services,” which are exempt under federal wage protection coverages. Instead, the new rule mandates that home care workers will now be covered under the Fair Labor Standards Act.
While most new regulations take effect within two months of issuance, this one will not go into effect until the beginning of 2015, so as to allow families and state Medicaid programs the opportunity to prepare.
Many of these workers already receive minimum wage, but they often don’t get overtime when they put in more than 40 hours. The federal government reports that approximately 40 percent of full-time home health aides receive some type of government benefit, such as Medicaid or food stamps.
Some have argued that the move is likely to backfire, as families may no longer be able to afford full-time, in-home help, meaning some workers will be cut to part-time and will ultimately receive less pay. Ultimately, they say, that could mean more crowding in nursing homes.
Mostly, though, that negative view was expressed in some of the 26,000 public comments the administration received on the issue from for-profit home care agencies.
That stance has been largely refuted by the fact that in 15 states that already require minimum wage and overtime protections to these workers, there has been no evidence of a serious impact on job loss or services.
The government estimates that of the 40 million Americans over the age of 65, about 6 million require some type of in-home assistance each day in order to avoid institutional care. That number is expected to double by 2030 as the population ages.
The new rule mandates that any home care aide who is hired through a company or other third-party agency can’t be exempted from overtime and minimum wage requirements. An aide is defined under the rule as someone who helps with daily living activities, such as feeding, bathing, grooming, dressing and other key day-to-day living needs, such as driving, meal preparation, medication and finance oversight and light housework.
Aides who live in their employers’ home and are hired directly by the individual or family won’t need to be paid overtime, but they should at least receive federal minimum wage for every hour they work.
Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Additional Resources:
Better Pay — Maybe — for Home Care Aides, Sept. 26, 2013, By Paula Span, The New York Times
More Blog Entries:
Florida Nursing Home Abuse; When Authorities are Slow to Act, Sept. 1, 2013, North Lauderdale Nursing Home Abuse Lawyer Blog