Rules Would Boost Pay For In-Home Health Aides

Guests

Steven Greenhouse, labor and workplace correspondent, The New York Times
William Dombi, vice president for law, National Association for Home Care and Hospice
Hilda Solis, U.S. Secretary of Labor

Nearly two million home health care aides help seniors and people with disabilities to live independently. These caregivers often work long hours doing difficult work without overtime pay. The Labor Department has proposed rules to bring home care aides under federal minimum wage and overtime protections.

Copyright © 2011 NPR. For personal, noncommercial use only. See Terms of Use. For other uses, prior permission required.

JENNIFER LUDDEN, HOST:

This is TALK OF THE NATION. I'm Jennifer Ludden in for Neal Conan. The home care industry is one of the nation's fastest growing. Home care workers help those who are old, ill or disabled, bathing them, turning them over at night, helping them eat and do simple, daily tasks that have become impossible.

The work can be physically and emotionally grueling and the hours incredibly long, and yet for decades, home care workers have been exempt from minimum wage and overtime protections. But the Department of Labor has proposed a rule to end that.

Today we're exploring what that will mean. If you're a home health care worker or an employer of one, either a family or a third-party contractor, how will this proposed rule affect you? Our number is 800-989-8255. You can email us at talk@npr.org, and you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Later in the program, Sri Lankan cookbook author Skiz Fernando, Jr., joins us. But first, Steven Greenhouse is the labor and workplace reporter for the New York Times. He joins us from our New York bureau. Welcome, Steve.

STEVEN GREENHOUSE: Nice to be here, Jennifer.

LUDDEN: Let's get some background first. Why is it that home care aides were first exempted from wage and overtime protections?

GREENHOUSE: In 1974, the federal government exempted - issued rules exempting these workers from the minimum wage and overtime laws. And at the time, you know, this was not a very large industry, and there were, you know, some workers who were basically seen as companions, who maybe played chess or checkers with an elderly person or disabled person, or took them for a walk.

In many ways, they were likened to babysitters, and they weren't really seen like professional - seen as professional workers. And this whole industry now with two million workers, and as you said, Jennifer, one of the fastest growing in the nation as the elderly population soars, now there are two million of these workers, and they're often well-trained.

They take courses to become certified home care aides. And the Obama administration basically scratched its head and said this doesn't make sense that these, you know, people are treated essentially like babysitters. They do real work, and like real workers, they should be covered by the minimum wage and overtime laws.

LUDDEN: So do we know what do they earn on average today?

GREENHOUSE: On average they earn about $8.50 to $12 an hour. The federal minimum wage is $7.25 an hour. Now, when you multiply that out by, you know, a full-time work of, you know, 40 hours a week - and many of them don't work 40 hours a week, Jennifer - they make $17,000, $20,000, $22,000 a year, certainly not a king's ransom.

And federal statistics show that 40 percent of the nation's home care workers get some type of government aid, either, you know, Medicaid, food stamps or sometimes even welfare.

LUDDEN: So they're not incredibly well-off, they're - even though many, it sounds like, do already make minimum wage.

GREENHOUSE: I'd say the great majority make minimum wage. There is - you know, they are - many of them are fairly skilled, and a lot of them are not willing to work for less than minimum wage - although there are some catches, Jennifer. You know, there are some situations that, you know, that I know of and many of your listeners know of, of, you know, people who need round-the-clock care, and on weekends they might have someone, you know, with them for 48 full hours on a Saturday and Sunday, and you multiply that out, it might not come to $7.25 an hour.

When my father was ill a year or two ago, we had an aide coming to our house, and she'd start at maybe nine in the morning in a town 20 miles away, and she'd work for two hours for another client then would take transportation, working for the same agency, and it would take her and hour and a half to get from the first client to our house.

And during that hour and a half of travel, she wasn't paid at all. So if you multiply out how many hours she was either working or traveling, you know, she ended up not getting paid the minimum wage because she wasn't really being paid for the many hours she traveled.

LUDDEN: Right, and what about, then, this issue of overtime? I mean, do we know in general do many workers get overtime even though it's not required?

GREENHOUSE: When I wrote my story the day this was announced, Jennifer, I was told, you know, maybe 10 percent of the two million workers get overtime. And, you know, when this case went before the Supreme Court, a woman from Queens, New York, Evelynj Coke, said I often work 70 and 80 hours a week, you know, taking care of elderly patients, and I should be paid for overtime for everything I work over 40 hours.

And she said it was, you know, outrageous that she's working all these hours and not getting time and a half. And the Supreme Court ruled that, you know, under current regulations, you know, before the Obama administration made these changes, she's not - she doesn't qualify for overtime. It was up to either Congress or the Labor Department to issue new rules.

And the Labor Department did that, and I think this will help, you know, the 100,000 or so workers who do work overtime, although people in the industry say, essentially, we don't want to spend - you know, we don't want to pay people time and a half. This means that instead of having some workers work 50, 60, 70 hours a week, we will spread the work around more, maybe hire more people.

LUDDEN: Right, and we are going to hear later in the hour from someone in the industry and also from the Labor Secretary, Hilda Solis, to look at this more. Can you give us a sense, Steven of - you mentioned a bit the typical daily life of a typical home worker, home care worker.

GREENHOUSE: Well, there are generally two varieties. Now, 90 percent of the home care workers work for agencies, Jennifer. And generally, they might have two or three clients a day, you know, helping someone with physical therapy, maybe checking their blood pressure, feeding them at lunchtime, waiting for - you know, waiting until son or daughter gets home from work to help out.

Or they are often - you know, the people who work, say, around the clock on Saturdays and Sundays. And, you know, the federal government says 92 percent of these workers are women, 32 percent of them are African-American, 12 percent are Hispanic. A lot of them are minority. A lot of them are immigrants.

And I think the Obama administration, in doing this, you know, it's - it helps - you know, the Obama administration says, you know, this is part of our effort to help the middle class, you know, to help lift people up who need lifting up. And it also, I think, helps the Obama administration with its political base showing, you know, we care, we're fighting for the middle class.

And, you know, some African-American and Hispanic groups have been saying President Obama hasn't done enough for them, that he's, you know, been happy to help the banks and hasn't done enough for his base. And certainly this will help ring some bells with his base.

LUDDEN: And this - we should note this has been kicking around for a while. I believe I read the Clinton administration, basically its last day in office suggested doing these rules, and then they were sidelined by the Bush administration, and now they come back.

GREENHOUSE: Yes, I mean, President Clinton, we all know President Clinton was known for procrastination, right. So here are these rules. He also issued some important job - you know, occupational safety rules in his last days in office, saying this is going to be great for workers.

Then President Bush came in, and since President Clinton issued these rules so late, they had, you know, they had to wait 60 days to really take effect, and President Bush was able to roll them back and essentially cancel them. And had President Clinton, you know, issued these rules a year or two earlier, then these rules would have remained in effect.

LUDDEN: Now, what - we again will hear from Hilda Solis at the Labor Department, but can you give a sense: What exactly has the Labor Department said? They are going to change, they are looking to change, they are figuring out how this is going to work? What do we know so far? Because there right now is this comment period where, you know, they could tweak things.

GREENHOUSE: Just to be clear, Jennifer, these are proposed rules. They're not final rules. And under the federal rule-making process, agencies have to propose rules and then accept public comments for 60 days. And sometimes there will be tens of thousands, even hundreds of thousands of comments, and the agency, if it's doing its job, really pays attention and reads to and listens to these regulations, to these responses, to these comments, and if - you know, if the public comment says, you know, this is really wrong, this one way, you should tweak it, you should tinker with it in this way, many times federal agencies, you know, do make changes in response to public comments, as they should.

LUDDEN: Now, we've also had some members of Congress talk about holding hearings and maybe passing something to preserve this exemption. Do you know what might happen there?

GREENHOUSE: You know, as you've discussed and Neal has discussed many times on TALK OF THE NATION, you know, the Republicans in Congress are not in love with what the Obama administration has been doing on the labor front, whether it's the NLRB, whether it's job safety, mine regulation and with these rules.

And Republicans say, with some justice, that this will cost the government more and that it might also cost the families, you know, who shell out money out of their own pockets to pay for home care workers, it will cost them more. And the - you know, the Republicans might hold hearings just to examine how much more will this cost, what influence will this have on agencies.

When - I was in a telephone news conference with Labor Secretary Solis, and I asked her, you know, will this cost, you know, nearly as much as the Republicans say, will this be dangerous, and she responded that it really wouldn't be expensive at all. She said that it would cost Medicaid and Medicare, and those two programs account for 75 percent of the nation's $70 million - sorry, $70 billion, in home care costs, she said that these changes for minimum wage and overtime will cost the federal government $31 million to $170 million a year, which is far less than one percent of the total cost of those two programs.

LUDDEN: OK, let's bring in a caller here. We have Camilla(ph) on the line from Salt Lake City. Hi, Camilla.

CAMILLA: Hi there.

LUDDEN: Go right ahead.

CAMILLA: Thank you for taking my call. I'm a home health aide here in Utah, and I'm actually a certified nurse assistant. So I've received training. And currently, I'm going to school. So I'm working part-time now, about 25 hours a week. But just a few months ago, I was working about 60 to 75 hours a week. This included my driving time.

So technically I was only working in the patient's home for about 35 to 40 hours. So it was really frustrating because I was not getting paid overtime at all. And so I'm really happy about this because I feel like I am the advocate for the patient, and I'm doing a lot for the patient, and I feel like I do a lot for my agency, and I deserve to get paid more.

And I know a lot of home health aides. I've been lucky to be able to support myself with the wage that I'm receiving, but I know other aides aren't getting paid, you know, barely minimum wage, and they have children. And luckily, I don't have a family to support, so...

LUDDEN: All right, Camilla, so thank you for your call. That's one happy home care worker out there. Thanks for calling. We are speaking with Steve Greenhouse of the New York Times, and soon we'll hear from Bill Dombi at the National Association for Home Care and Hospice, as well as Labor Secretary Hilda Solis to talk about this proposed rule change for home health care aides. I'm Jennifer Ludden. It's TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

LUDDEN: This is TALK OF THE NATION from NPR News. I'm Jennifer Ludden. Today we're talking about home health care aides. Since the 1970s, so-called companionship workers have been exempt from federal labor protections, but now the Labor Department wants to change that, extending the minimum wage and overtime coverage to them.

If you're a home health care worker, or if you employ them, how will this proposed rule affect you? Our phone number is 800-989-8255. Our email is talk@npr.org. And you can also join the conversation on our website. Go to npr.org, and click on TALK OF THE NATION.

Steven Greenhouse is labor and workplace correspondent for the New York Times. He's with us from New York. And also Bill Dombi of the National Association for Home Care and Hospice is here. It's a trade organization for the home health care industry, and Mr. Dombi is the group's vice president for law. He joins us by phone in Dunkirk, Maryland. Welcome.

BILL DOMBI: Oh, thank you, Jennifer.

LUDDEN: Now, I understand your organization's actually conducting a survey about this new rule. Can you tell us: What are you finding out?

DOMBI: Well, we're surveying two different categories of businesses that provide home care services. One are the businesses that provide the personal care services that would otherwise be considered companionship services in states where there is an obligation to provide both minimum wage and overtime.

We're also surveying those states where a new obligation may come if the proposed rule is finalized to try to get an understanding of what kind of impact it may have. And what we're finding so far, and our survey is not yet finalized, but what we're finding so far is that the change that would require minimum wage would have virtually no impact at all on the way businesses operate, but beyond that, the overtime compensation would require changes within the business.

But the changes primarily would be ones that affect the workers, and the number one finding of the survey is that the companies would have to address the overtime obligation primarily by reducing the number of hours worked by employees in order to avoid paying overtime, and the main reason they're explaining that is because they do not set their prices; their prices are set by Medicaid and Medicare and other government payment sources.

And those payment sources are not going to be responding, it's anticipated, with any increased reimbursement to cover the additional cost.

LUDDEN: OK, so how would that play out if someone then reduced their - the hours for workers. What would happen?

DOMBI: Well, from what we found in those states that have already had the overtime obligation, we expect to see the same mirrored in the new states that may be affected and that being that the businesses, you know, provide the employment, restrict the hours to 40 hours, hire additional workers to fill the needs that they have of their clientele and that the workers interested in working more than 40 hours go and find a second or third job with another employer.

LUDDEN: So - and you're saying that happens already in states that already have overtime requirements?

DOMBI: There are about 20 states that already have one form or another of overtime obligation. Michigan, for example, it's straight after 40 hours. In New York state, it would be overtime after 40 but time and a half for minimum wage rather than the actual hourly wage.

LUDDEN: So on one hand, it sounds like you're saying there could be more jobs created through this, although individual workers may take a hit.

DOMBI: Well, there's no shortage of home care aide jobs, as the Department of Labor itself has recognized. This is one of the fastest growing areas of employment. I think there are more jobs to be filled already. So creating new jobs is not necessarily going to help, in fact probably cause some greater difficulties in meeting the needs of elderly and disabled because this is very tough work.

The people who provide home care, personal care services, home care aide services - it goes by many labels - are incredible people, providing services that many of us just couldn't handle.

LUDDEN: Which advocates, then, say they should get a little more, they would - you know, would you argue that they don't - shouldn't get overtime?

DOMBI: No, we wouldn't argue that they shouldn't get overtime. The concern that we have is that looking at this worker and overtime compensation in isolation from all other needs will likely lead to the kind of responses that we're getting into real action, meaning the worker is not going to gain anything out of it.

When we look at this worker, the home care businesses already face high turnover. Recruitment is difficult. Retention comes with that, it's difficult, as well. And when you're seeing the reasons for difficulty in recruitment and retention, beyond the hard work, are issues of compensation and benefits and the like.

And so do the individuals, you know, want to stay on the job because they're getting a higher base wage or because they're getting overtime compensation? It is better to have health insurance than it is to have overtime compensation? Is there a more likely chance of recruiting and retaining workers if they have career opportunities?

And so our position has been that you've got to examine all of these elements of the workforce, determine what is going to make the greatest difference for both the worker and the services provided because, you know, we all can keep in mind that elderly and disabled individuals are the beneficiaries of the services provided by these workers.

So we've been advocating for a four-corner-type plan to try to address all of the needs, with recognition that this is not a management-versus-labor issue so much as it is management and labor versus the payer source.

LUDDEN: What do you mean, four-corner-type plan?

DOMBI: Well, four corner meaning looking at the issue of health insurance, looking at the issue of career opportunities, the issue of base wages because if overtime is the only thing that really is affected in the compensation and work relationship of personal care workers, home care aid workers, the businesses have already demonstrated that they have a way of dealing with that that ends up creating nothing but additional cost for everybody and less work opportunity for the workers, which doesn't sound like the kind of win that both the businesses and the workers would like to see.

LUDDEN: Let's bring a caller in. We have Jack(ph) in Warsaw, Wisconsin, who is an employer of health care aide or many aides. Hi there, Jack.

JACK: Hello. I just wanted to call in and applaud this law. We have always paid more than minimum wage. We have always paid overtime, although we try to minimize overtime, as he mentions. We have this innate turnover in caregivers, and we try to not work them too much so that we experience less care - or less turnover.

And I know that we get industry emails each week, fight this, fight this, fight this. I applaud this law because I think it will force our competitors to pay, I feel, equal to us, and it will give us a level playing field.

LUDDEN: And so you're feeling the industry as a whole doesn't want these laws, but you feel that you do. You try to minimize overtime, Jack. How do you do that?

JACK: Well, if we have a new demand for hours, we will do overtime and pay time and a half for caregivers, but we know that's not a sustainable solution. No one can work that many hours in such a stressful, demanding position. So we will allow them to work overtime, to get us through a period of high demand, but then we will add to staff so that no one burns out prematurely.

LUDDEN: And do you not have workers who really want more time? I mean, are there some - we've heard of some who maybe have a second job. You know, if they're getting, you know, over minimum wage but a fairly low wage, you can imagine some might really want extra hours.

JACK: We do have many that want it, but from experience, we just know that it's not sustainable. They can't do this type of work for 50 and 60 hours a week and still do it well. There are safety concerns. There's client and caregiver burnout, could just - it's not sustainable in an overtime situation. So we use it very sparingly, and we're not afraid to pay for it when we use it, but we try to minimize it because it works out best for the client and for the caregiver.

LUDDEN: Well, Jack, thanks for the call.

JACK: Thank you.

LUDDEN: William Dombi, what do you make of Jack's point there?

DOMBI: Well, I think Jack is a reflection of the industry at large. There is a misimpression that the industry is up against the companionship services exemptions revision. I think, you know, the better characterization is what I offered before, is that we've got to look at the whole worker and the whole compensation package and the whole employment status of those workers because in the absence of those workers, there are no home care businesses.

And so the workers and the businesses have to work this out together there. The Department of Labor itself, you know, when it evaluated the impact of this proposed rule, assumes to a great degree that the workers will not work past 40 hours because of the pressure of overtime compensation and the inability to sustain a business with such compensation.

So we're looking at that and saying, you know, why are moving forward at this juncture with just an isolated approach to that worker when in the end the only gain that happens is that the worker is restricted from 40 hours. And I'm not sure every worker is happy with being restricted.

The individual who just referenced it, you know, they, as a matter of protocol, try to keep the workers not working overtime. You know, it is something that's very important to do, but it's not always in sync with what the worker wants. Some workers want more hours than 40.

LUDDEN: All right. William Dombi, vice president for law at the National Association of Home Care and Hospice, thanks for joining us by phone from Dunkirk, Maryland.

DOMBI: You're very welcome.

LUDDEN: The Department of Labor is pushing for this change in how we care for the caregivers, and Secretary Hilda Solis is its biggest proponent. She joins us now by phone from Los Angeles, California. Welcome.

SECRETARY HILDA SOLIS: Hello. How are you?

LUDDEN: Good. I understand this is a personal issue for you. Your mother, at one point, was a care worker, is that right?

SOLIS: Years ago, yes, it's one of her first jobs coming to this country and immigrating here. But it is even more of a priority because, personally speaking, I have a very ill father who has a caregiver, and we have services that are being provided for him. And here in the state of California, we have such great rules in coverage to provide for adequate minimum wage overtime. And we're gladly doing that, because, you know, it's a personal issue for many families.

You definitely want to have someone who is very much in tune with this kind of service and with the patient. And I think, for many years, people in this industry, especially in home health care workers over the years that I've lived in California and advocated for better salaries for them overall, they are the hardest working people, and they deserve to be respected. And it is a growing industry. By and large, we're seeing potentially two million people, mostly women, mostly women of color, many women or immigrants that take these jobs on, and have no idea that there are protections for them in many states.

And we want to standardize that. And I think, in all fairness, the president, President Obama, when he announced the proposal, said that these folks deserve to be treated fairly. They deserve to be paid fairly for service that many older Americans couldn't live without, and nothing could be further from the truth. I think our focus has been very fair. We want to hear comments from everyone. I certainly want to see this profession become more professionalized, so that there are different career avenues, and that we can bring about the appropriate career training and whatever additional certificates that might be needed or required, or could be given so that people could look at this as a long-term profession.

LUDDEN: I think that...

SOLIS: I definitely see many women who have not been paid adequately who had to subsidize their income through public welfare programs, food stamp programs and through other means. And we should be taking a close look at this over the next few years. Not just this year, as we propose the rules but as we move towards the baby-boomer population living longer and choosing to live at home.

LUDDEN: Let's hear from a caregiver. I believe we have one on the line. Jim in Orlando. Hi there.

JIM: Hi. This is Jim. Thank you, Jennifer. I own a homemaker companion company, mostly private duty, in that the clients pay directly. Medicare and Medicaid is not paying for it. We specialize in live-in care where somebody is there for a 24-hour period, and they're not earning overtime, but they are sleeping at night. Our concern is that the caregivers will actually, like, make less money and the clients will receive less care, based on this proposed rule. Just a quick math, right now, if you take in eight hours - as of January 1st, Florida's minimum wage will be $7.67 - they'll make $61.36 for the day, and they'd make more than double that as a live-in caregiver and will go to eight-hour shifts, three eight-hour shifts rather than pay overtime, if this law went into effect.

LUDDEN: So you're saying it's the caregivers who will feel the brunt of this?

JIM: They will. They'll make half as much. But additionally, the clients, because it will cost more, will have to make a decision whether or not they can bear that cost because they're paying out of pocket. But also, if they can't get more care, or they can't afford more care, they'll get less care. And about two-thirds of our clients are memory impaired...

LUDDEN: All right...

JIM: ...whether it's dementia or something else, and they can't go without somebody being with them, not caring for them 24 hours, but with them 24 hours.

LUDDEN: All right. Jim, thanks so much for the call.

JIM: Thank you.

LUDDEN: Let me just note, you're listening to TALK OF THE NATION from NPR News. Secretary Solis, what about Jim's concerns there, that caregivers will get less money, less hours?

SOLIS: Well, you know, we heard the concern earlier about the potential to pay overtime, but in many instances, that is, I think, one of the most important aspects of being an in-home health care provider, someone that's providing this care, because they grow - there's that attachment, also, that comes along with working and caring for an individual. And certainly, in many cases, and I've seen it happen right now in our own household with my father, who has become attached to his caregivers.

He has two, and they work different shifts. And I know that what we're looking at here in terms of individuals that would be receiving, say, Medicare and federal assistance, that the amount of money is actually a lot lower than what most people would think. So I know that that wouldn't be a hindrance. In fact...

LUDDEN: You've calculated, right, the cost to Medicare and Medicaid, potentially?

SOLIS: Yes. What we're seeing here is that Medicare and Medicaid, which covers about 75 percent of home care costs, would likely pay an additional 31.1 to 169.5 million each year toward home care aid. That would represent approximately .06 to point - 0.29 percent of federal and state outlays for home care, a very modest increase to ensure that two million working professionals are provided with good coverage - with good salary and coverage. That, again...

LUDDEN: So can I just clarify, does this mean...

SOLIS: ...helps out these families that rely so much on these individuals for that immediate and very personal care.

LUDDEN: But if someone, say, have an overnight shift and they're spending the night and maybe sleeping seven or eight hours of that night, they will get paid even into overtime for that, or would it be calculated some different way?

SOLIS: Well, we would be looking at it - we would be looking, you know, generally, for overnight shifts, the companion would have to pay when they're - they do have to pay - the companion would have to pay when they do sleep over. But, generally, an employee who is required to be on duty for less than 24 hours is working even though the employee is permitted to sleep and all the time is counted as hours worked. So if an employee is required to be on duty for 24 hours or more, the employer and employee may agree to exclude bona fide regularly scheduled sleeping periods of not more than eight hours...

LUDDEN: All right...

SOLIS: ...of hours worked.

LUDDEN: ...and we are running out of time. But, Hilda Solis, labor secretary, thank you so much for your time.

SOLIS: Thank you.

LUDDEN: And she joined us by phone from Los Angeles.

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