February 22, 2012

Comments by Dean Baker on Application of the Fair Labor Standards Act to Domestic Service

Mary Ziegler, Director
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue NW.
Washington, DC 20210

Dear Director Ziegler:

I am writing reference to (RIN) 1235-AA05. I would strongly urge the Department of Labor to apply the Fair Labor Standards Act (FLSA) to home health care workers. The exclusion of home health care workers is in part a result of historic discrimination that should not be perpetuated any further into the 21st century. It is also inconsistent with the current state of the home health care industry and the needs of the industry’s clients.

There can be little doubt that the fact that home health care workers were disproportionately women and African American played an important role in their initial exclusion from coverage under the FLSA. These sorts of jobs were felt to be less important than those disproportionately filled by white men. This was the same logic that initially excluded home health care workers and many other types of workers from coverage by Social Security.

The country has made enormous progress in reducing racial and gender-based discrimination over the last seven decades, however it still has far to go. The current exclusion of home health care workers from FLSA protections is an area in which this discrimination remains.

It is also necessary to change the status of home health care workers in order to meet the needs of a changing population. With the portion of the elderly in the population growing rapidly, and most lacking immediate family members in a position to provide care, the demand for home health care workers is projected to grow rapidly in the next two decades.

In order to meet this demand it is important that the conditions for home health care workers be comparable to those in other forms of employment. Otherwise, the workers filling these jobs are unlikely to take the time to develop appropriate skills and to make the sort of commitment needed to provide quality care. Almost by definition, an occupation that has low pay and poor working conditions is one where workers have few skills and turnover is high.

I recognize the issues involved in monitoring hours for home health care workers, but these are not qualitatively different from monitoring issues that arise in other contexts. While enforcement will never be perfect, there are enough checks that can be used to limit the extent to which workers may seek to game the system.

I hope that the Department of Labor will take the opportunity to correct a historic wrong and to have home health care workers covered by the FSLA.