May 11, 2015
The work of the nation's 2 million home health-care aides and attendants has been in the public spotlight for a while now, first as those workers rose up and demanded that their labor be valued the same way as other work is, through access to the protections of labor law, and then as the victories they won have been dismantled in court bit by bit.
There was Harris v. Quinn, the Supreme Court case where the justices, in a 5-4 decision, ruled that home-care workers were different than other types of publicly employed workers and thus not subject to the same kind of rules governing their unions as other public workers. And now there is Home Care Association, et al. v. Weil, et al., a suit brought against the Obama labor department's decision to change the historic exclusion of home-care workers from the Fair Labor Standards Act. This winter, a federal judge overturned the Department of Labor's new rule; last week, the United States Court of Appeals in the District of Columbia Circuit heard arguments appealing the decision.
The “companionship exemption” dates back to 1974, but the reasoning behind it is far older. As Sheila Bapat noted in her book Part of the Family? Nannies, Housekeepers, Caregivers, and the Battle for Domestic Workers' Rights, domestic workers were excluded from New Deal-era labor protections (along with farmworkers) because most of them were Black women. The racist legacy of slavery combined with a longstanding tendency to assume that the work women do in the home, cleaning and more importantly, caring, is not real work.
Caring work in particular is presumed to be done for love; this was the logic at the core of the argument in Harris v. Quinn, that the home is not a workplace and that people being paid to do care work in the home were not union workers. That argument has been used for decades to justify persistent low wages in the industry, and it was used to exempt home-care "companions" from minimum wage and overtime protections.
“That’s right—you can wake up at five in the morning, care for somebody every minute of the day, take the late bus home at night, and still make less than the minimum wage,” President Obama said when he announced that his labor department would act to narrow the companionship exemption so that people providing necessary health-care and living assistance to elderly or disabled people would make at least minimum wage.
It would seem that the argument that home care is not a real job goes out the window when the workers are employed by a third-party agency, particularly one that is a for-profit business. This was the argument made by the labor department in its rule change, which affected all care workers employed by agencies—the vast majority of the workforce.
Alongside two lobbying groups for the home health-care industry, the third plaintiff in Home Care Association v. Weil is the International Franchise Association, a lobbying association for franchise businesses. It represents both franchisors, the big brands that control national chains from fast food to home care, and the franchisees who operate individual stores and pay a fee to the national brand. You might most recently have heard of it because of another lawsuit it filed, to block Seattle's historic $15 an hour minimum wage. Though it often phrases its objections to labor protections in language about concern for small businesses, researcher Mariya Strauss at Political Research Associates notes that IFA's lobbying concerns mostly track with the demands of "the biggest franchisors such as McDonald’s and home health-care chains such as BrightStar.”
“Industry lobby groups like the IFA and their affiliates BrightStar are making two contradictory claims. On the one hand they claim to care deeply about the needs of low-income consumers. And yet on the other hand BrightStar, on its own website, purports to bring profits of more than $1.3 million per year to its franchisees,” says Elly Kugler, a staff attorney at the National Domestic Workers Alliance (NDWA). “These claims seem contradictory and this lawsuit doesn't seem to be motivated by care but by profit.”
BrightStar's website, in addition to the claim of profits, says that Shelly and JD Sun started the company in 2002 as a “family business” which has now branched out to 250 locations nationwide. Shelly Sun is also the author of Grow Smart, Risk Less: A Low-Capital Path to Multiplying Your Business Through Franchising and a public speaker whose list of topics includes “Finding Success As a Female CEO.” She is a board member at IFA and in 2014, received the IFA Sid Feltenstein FranPAC MVP Award for her work on behalf of FranPAC, IFA's political action committee. FranPAC's agenda includes “protecting the business model, fighting the unjustified NLRB decision to designate franchisors and franchisees as joint-employers and making changes to the Affordable Care Act to help franchise owners make sensible workforce policy decisions.”
Sun also appeared on the reality-TV program Undercover Boss in 2011, where she went to work as a care worker for a day. No word, though, if she had to live on less than minimum wage while the show was being filmed.
BrightStar's website also notes that Shelly and JD Sun had no medical, home-care, or health-care experience when they started their business, and that would-be franchisees need none either.
It is worth noting, of course, that for-profit franchises are certainly not the only ones fighting against labor protections for home-care workers. Nonprofits, too, argue that their clients—the elderly and disabled care recipients—will suffer if they are forced to pay minimum wage and overtime to their employees. The lawsuit argues, in part, "The new Rule will lead to increased institutionalization of those needing home care, as many will no longer be able to obtain the currently available levels of access to affordable, quality care in their homes."
And yet this argument seems to belie the underlying logic that home-care workers are simply companions who do no real work. If their work is so deeply necessary, surely it is worthy of respect and fair pay? After all, doctors' labor is also deeply necessary, yet no one argues that doctors should make less than minimum wage because otherwise people would be unable to receive health care.
“We know that any gains we get have to be done in collaboration with the consumers who are also affected by these changes,” Kugler says. “What we are even more disturbed by is the way that private industry groups are using this lawsuit in order to protect their profits while purporting to care about the needs of low-income seniors and people with disabilities.”
As I've written before, the language of care cuts both ways in cases like this. Care workers are expected to do the work for the love of it, while their bosses make profits. Meanwhile, when those workers dare to expect some minimal level of protection for their demanding labor, their bosses piously claim that the workers are the selfish ones who don't care for their clients enough.
Yet research has found repeatedly that better wages and job security produce better, not worse, care. The industry now suffers from absurdly high turnover, and workers who have no paid sick time and low wages are at risk of getting their clients (who are often much more vulnerable to illness) sick as well. Meanwhile, in New York, worker-owned Cooperative Home Care Associates has more than 2,000 worker-owners who make over $14 an hour including benefits, and have a guarantee of working hours—and has 15 percent turnover compared to 50 percent average for the industry.
Ultimately, creating a society that values care, as NDWA director Ai-jen Poo argues in her new book, is going to take major changes; making home-care workers eligible for the barest of labor protections is a very small step in the right direction. What we definitely don't need, though, is more well-off bosses evoking the language of care to justify more exploitation.