On July 2, the Department of Labor’s Wage and Hour Division issued a proposed rule that would overturn home care workers’ rights to earn a minimum wage and overtime pay. This move would diminish the rights of up to 3.7 million caregivers, personal care aides, and home health aides employed by agencies across the country.

Specifically, the rule would allow home care agencies to avoid paying minimum wage or overtime if no state law requires it, by reverting to the pre-2013 interpretation of federal labor law. Under that interpretation, live-in workers, companionship providers, and many domestic workers employed by third-party agencies were excluded from Fair Labor Standards Act (FLSA) protections. The proposed rule eliminates the 2013 definition of “companionship services,” which had limited care-related tasks to no more than 20 percent of weekly hours. That narrow definition had ensured that many workers previously excluded were finally covered under the FLSA

This move to repeal the rights of home care workers is a major step backward. Home care workers do essential work and, like all workers, deserve a living wage and dignity on the job. Getting full coverage of the FLSA is vital to fully empower the millions of majority Black and Brown immigrant women who drive the home care sector and to build a care infrastructure that is both resilient and just.

Key Background and Important History

In 1974, Congress finally included domestic workers in the FLSA after they had been harmfully excluded since its original passage in 1938. The FLSA is the labor law that creates the right to a minimum wage and “time-and-a-half” overtime pay when people work over forty hours a week. This win was a clear rejection of the troubling history behind the exclusion, which was rooted in the country’s system of slavery and its legacy which devalues the work of Black women and other women of color. 

Yet at this crucial point when domestic workers were supposedly covered by the FLSA, Congress permitted the Secretary of Labor to define a group of domestic workers to be exempt. In 1975, the Department of Labor (DOL) exempted workers doing “companionship” and “live-in” services and all home care workers employed by third-party home care agencies and other employers (rather than directly by the individual or household receiving the services). The next major step came almost four decades later in 2013, when the Obama-era DOL published a final rule that precluded any third-party employers (like home care agencies) from claiming the exemption for companionship services or live-in domestic service employees. This meant that home health aides in the 35 states that didn’t have minimum wage or overtime protections gained them for the first time. 

The Trump administration’s proposed rule essentially returns the country to a 1975 regulatory system when live-in, companionship, and broadly third-party employed domestic service workers lacked the rights guaranteed by the FLSA. 

The Trump Administration Says the Rule Will Help Workers and Those Who Receive Care. This is False.

The DOL is clear about who wins and who loses with this rule. 

First, they say the proposed rule will be a boon for employers. They say it would reduce the cost of home care for patients, reduce compliance costs for employers, and expand access to care by encouraging more providers to enter or extend services in the home care market. In the DOL’s words, the proposal and countless others are part of an effort to remove “the costly and burdensome rules imposed under previous administrations” and “give American workers the flexibility they need to build a better future.”

The current Trump administration has removed countless important rights of workers for the sake of “reducing regulatory burden.” This is just code for making companies and employers richer and paying workers less.

Workers, on the other hand, would face lower pay, longer hours, and more onerous working conditions. Of course it costs more to pay people livable wages. This isn’t a hard one to figure out. Denying workers the right provided by the FLSA ignores the reality of what is needed to deliver the care workforce this country desperately needs. The exemption originally established by Congress in 1974 “was meant to apply to casual work arrangements like babysitting,” not to full-time professional caregiving that the majority of home care workers provide today. Home care workers are dedicated professionals who are caring for seniors, people with disabilities, and people suffering from sickness. While cutting wages may lower costs in the short term, ultimately it will drive people out of these jobs, particularly the skilled professionals needed for such high-trust positions. This in turn harms the millions of Americans who rely on home care services as patients. 

Currently in Louisiana, West Virginia, Texas,Mississippi, and Oklahoma, average hourly wages are lowest. Home health care workers typically make less than $12 an hour. Explicit exclusion of home care workers in the FLSA implies that this work is undervalued and deepens the economic and other discrimination faced by the majority Black, Latinx, Asian, and immigrant women who make up the majority of the home health care workforce.

The Trump administration trumpets the proposed DOL rule as a win for workers’ “flexibility,” saying that it will allow workers who are employed by multiple home care agencies and work more than 40 hours per week in total to consolidate their employment with one agency. But a lower wage for more convenience is not a pro-worker tradeoff.

In reality, this is an effort to frame workers getting paid less as a victory because their employer will be willing to work them ruthlessly for less money.

American home care workers do not need more flexibility; they need livable wages that will allow them to support their families. Raised wages must also go hand in hand with nonwage benefits such as paid leave, health insurance, and retirement benefits. 

The Solution to the Care Crisis: Paying Workers More

The solution to the care crisis in the United States is not advanced by allowing employers to pay workers less. Home care, home health, and personal care aide work are among the country’s lowest paid jobs. Repealing the 2013 rule is a clear step backwards. Higher wages attract a better prepared workforce and reduce turnover. In most years since 2016, there have been nearly 700,000 people on waiting or interest lists for expanded home and community-based services. We also know that 77 percent of people ages 50 and older say they want to age in place, indicating that home-based care is a fast- growing need. Reducing pay and requiring home care workers to work long hours will exacerbate this shortage of workers to provide care.

The proposed DOL rule will dramatically harm progress towards building a care infrastructure where home health care workers are paid living wages, individuals and families can afford to access the care, and home care agencies continue to meet the ever-growing needs of America’s aging population

Medicaid funding pays for roughly 70 percent of home care services. Medicaid cuts in the one big ugly bill passed this month will dramatically impact the reimbursements to home care agencies. This will affect both the employment and wages of home health workers. Without regulation of the FLSA, the industry is ripe for overworking and underpaying a workforce that is vital to this country.  If adopted, home health agencies will be unable to meet the growing needs of America’s aging population.

There is a 60-day period – until September 2 – for the public to submit comments on the proposed rule. We encourage all domestic workers, researchers, and providers to comment.