The Obama administration's Labor Department will propose new rules in October to bring more home healthcare workers under protection of federal minimum wage and overtime laws.
But even while the department's Wage and Hour Division is working on the proposal, the very idea of paying the workers a decent wage is already catching flak from home healthcare companies.
The rules, part of DOL's proposed regulatory agenda for 2011, were unveiled Jan. 5.
If adopted, the new rules could lessen the impact of a U.S. Supreme Court ruling several years ago.
In a case from Long Island, an underpaid and overworked home healthcare aide, with legal help from the Service Employees, sued to get the minimum wage and overtime pay. The aide got differing decisions in lower courts.
The Supreme Court justices, citing a 1974 exception in labor laws covering home health care workers, turned her down. But DOL says the home health care industry has changed so much in the last 36 years that the exception should be narrow - and Wage and Hour wants to design rules to accomplish that goal.
"DOL intends to consider whether the current exemption of companions working for a party other than the family or household using the companionship services is consistent with the status of a companion in light of significant changes in the home care industry," Wage and Hour's notice said.
After Congress exempted most "companions for the aged and the infirm" from minimum wage and overtime pay in 1974, DOL wrote rules the next year defining which workers are in or out under the law. The rules have changed little since, DOL said.
Wage and Hour will consider changing the rules "in light of the changed nature of the employment relationship for the majority of companions to the aged and infirm, the increased formalization of this sector of the labor market, and to reflect the secretary's strategic objectives" of providing good-paying jobs, Wage and Hour's notice said.
In the Jan. 5 online chat on the rules, Wage and Hour officials repeatedly deflected questions about the substance of DOL's proposal for the home care workers' wages and overtime by saying they're still drafting the language.
That didn't stop several commenters from opposing the idea, arguing it would force seniors into nursing homes.
"Has the DOL considered the barrier related to the cost of services to individuals that changing the companionship definition may pose, and that the change may necessitate some individuals accessing nursing facilities at an expedited rate with a spend-down to Medicaid when services in the community are not affordable?" one unidentified commenter asked.
A commenter identified as "Brandi" declared that, "I hope the DOL will seek input from the billion-dollar domestic worker industry about the costs if the companionship exemption is lifted, as most of the care received at a person's home is paid privately. The DOL will drive this industry underground if this is lifted, as seniors will be forced to move to facilities."
Added commenter Frank Price: "Our industry does not have large margins. Any increase in our labor (the lion's share of our cost) will directly affect our ability to offer services affordably. This will cause more individuals to be placed in nursing homes sooner. We allow our employees to choose to work under the exemption. Can this be included in any changes as an option?"
The Wage and Hour staff replied those issues - and others that were raised - would be addressed in the proposed rule itself. That proposal "is under development, so it's premature to discuss its content," the division staffers kept repeating.