With New Protections Tied Up in the Courts, Home Health Care Workers Aren’t Waiting Around

Originally published in The American Prospect on April 3rd, 2015.
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Almost two years after the Obama administration extended historic labor protections to the nation’s 1.79 million home healthcare workers, those new rights remain in limbo. In September 2013, the Department of Labor (DOL) announced plans to amend a longstanding regulation that has excluded them from earning the federal minimum wage, overtime pay, and compensation for travel on the job. For home healthcare workers in the United States—a group that is nearly 90 percent female—this move marked a significant step towards setting a floor of decent labor standards.

But the rule-change, which was set to go into effect on January 1st, now faces a challenge in federal court, and critics say state legislators are using the ongoing litigation as an excuse to avoid implementing the new protections. At the same time, given that most home healthcare workers are paid through Medicaid and Medicare—two underfunded public programs—many also worry that states will respond to the rule-change by curtailing consumers’ access to quality care. Activists across the country are working to pressure their lawmakers to reckon with these new standards and avoid potential calamity.

Four decades ago, Congress decided that home healthcare workers should be classified more like babysitters who provide “companionship,” rather than as workers entitled to basic protections. Nursing home employees, by contrast, are fully covered under the Fair Labor Standards Act (FLSA), despite performing many of the same tasks. As home healthcare has ballooned in recent years, these occupational distinctions have become harder to justify.

According to the Bureau of Labor Statistics, the U.S. will need one million new home healthcare workers by 2022. But the work is draining, the pay is paltry, and turnover is high. When adjusted for inflation, home healthcare workers’ average hourly wages have declined by nearly 6 percent since 2004. In 2013, the average earnings of home healthcare workers totaled just $18,598. 2013 was also the year that the Obama administration decided it was well past time to update FLSA’s policy. Because the DOL has the authority to amend federal regulations, it was able to enact this change without seeking Congress’s approval.

Though the new DOL rule-change would most directly benefit home healthcare workers, it carries implications for all domestic workers, including nannies and housekeepers. “By improving the conditions and protections in one area, you’re broadly boosting the sense that this is dignified work,” says Elly Kugler, an attorney with the National Domestic Workers Alliance, (NDWA) a group representing domestic workers in the United States.

Whether that change will actually be implemented is another question. Last year three industry groups filed a lawsuit against the DOL rule-change, insisting that it would have a “destabilizing impact” on home healthcare and hurt millions of elderly individuals. On December 22, 2014, a D.C. district judge vacated the rule for third-party employers, arguing that the executive branch cannot make such a regulatory change. A few weeks later, the same judge also vacated FLSA’s revised definition of “companionship services.” The DOL filed a challenge in appeals court, and arguments will be heard later this spring. Some suspect this may ultimately make its way to the Supreme Court.

Then, on March 20th, Labor Secretary Tom Perez sent a letter out to all 50 governors, urging them to focus on budgeting the minimum wage and overtime protections now, “to ensure that [they] will prepared if the Department prevails” in appeals court. Across the country, activists are also pressuring their representatives to focus on these issues. Yet many lawmakers are using the litigation as an excuse to avoid reckoning with the thorny budgetary questions. This means workers may not see minimum wage, overtime, and travel pay increases anytime soon.

“In Georgia, we’re seeing that our lawmakers are not talking about these issues,” says Tamieka Atkins, who leads Atlanta’s chapter of NDWA. “They have the attitude that we’re not going to move on this until the lawsuit comes down.” In response, Atkins’ group launched a campaign to lobby lawmakers and health agency commissioners in advance of their next legislative session. They also started a petition—“Governor Deal: All Eyes Are On Georgia”—asking for gubernatorial support towards minimum wage and overtime.

Activists in Texas are also applying pressure to their leaders. In January, domestic workers launched a home healthcare campaign, bringing together consumer groups, disability rights organizations, and labor unions. The following month—for the first time ever—domestic workers traveled to Austin to share their personal stories and lobby state legislators. “It was a really great opportunity because we agitated on different levels,” says Mitzi Ordonez, a domestic worker organizer at the Fe Y Justicia Worker Center in Houston.What we found is that many of the lawmakers just didn’t know about these [DOL] changes.”

Compared to Texas and Georgia, some states have made greater progress towards implementing the new labor protections. California, which already pays its home healthcare workers minimum wage, allocated new funds for overtime pay in its 2014-2015 budget, and was prepared to pay workers more at the start of 2015. But after learning about the federal lawsuit, California Governor Jerry Brown decided to postpone the overtime pay, even though there is nothing legally obligating him to do so. Frustrated activists have launched a campaign in protest; they organized meetings with state legislators, held rallies and candle light vigils, and even set up a“Justice for Homecare Tribunal”—a mock trial against the state. “The best thing for us to do is to not rest on our laurels,” says Doug Moore, the executive director of the United Domestic Workers of America. “The governor wants this to go through the courts, but we will use pressure to change his position.” Moore says that if the DOL rule-change is upheld in appeals court, they will then move to demand retroactive overtime pay back to January 1st.

Yet for some states that have reckoned with the rule-change, the results haven’t always been encouraging. “What we have been seeing, unfortunately, is that you can equally comply with FLSA by paying overtime and travel time, or by setting caps on the number of working hours,” says Alison Barkoff, the Director of Advocacy at the Bazelon Center for Mental Health Law. This scenario is playing out in states like Arkansas, which is looking to cap homecare workers to just 40 hours per week, and to limit each worker to just one customer per day. In effect, this would enable states to avoid paying workers overtime and travel costs. But such measures will hurt employees who make their living by piecing together multiple part-time jobs. It may also impact consumers who need more than 40 hours of care, or who may have a harder time finding someone willing to work for just a few hours per day.

Some hope that the Americans With Disabilities Act (ADA) and the Olmstead v. L.C. Supreme Court case, both of which protect disabled individuals from discrimination and unjustified segregation, will help consumers fight back against cuts to healthcare services. “The ADA and Olmstead provide important protections to consumers, but they won’t completely prevent a state from implementing restrictive policies,” Barkoff explains. “The laws do not prohibit a state from capping worker hours, so long as the state has a process for exempting individual consumers who will be seriously harmed. Most consumers will have to shift the way their care is provided.”

Meanwhile, labor activists maintain that their interests are not at odds with those of healthcare consumers, because quality care depends on creating sustainable working conditions. Many in the disability community have also signed amicus briefs in support of extending minimum wage, travel time, and overtime protections to home healthcare workers. “I think it’s important to know that there isn’t just one disability rights community,” says Sarah Leberstein, an attorney with the National Employment Law Project. “Many groups are very supportive, but they’re also really concerned about states taking it seriously and implementing the rules in a thoughtful way that doesn’t result in cuts to services.”

Even if upheld, the DOL rule-change may be hard to enforce. In New York City—a place that has instituted a progressive domestic workers’ bill of rights and a paid sick leave policy—activists have learned first-hand how enforcing these types of laws can be quite challenging.

“It’s really hard to be reliant on a complaint-driven process where workers have to come forth, but still fear retaliation,” says Irene Jor, a New York organizer with NDWA. Many domestic workers are also isolated in private homes, without much regular interaction with other workers who might provide them with moral support to raise grievances. Even once complaints are filed, not all are likely to be dealt with. “The Department of Labor, both on the federal and state level, is incredibly underfunded and does not have enough investigators,” says Leberstein. “So often they can’t simply respond quick enough, and they can’t do targeted enforcement.”

Nevertheless, if the DOL rule-change were upheld, it would be an important achievement. Some businesses would certainly have to adjust their operations to accommodate the new labor protections, but supporters of the rule-change insist that the industry’s opposition is overblown. According to national surveys, less than 10 percent of home healthcare workers even report working more than 40 hours a week. “We’ve also got many examples of big home care agencies that have figured out ways to pay workers properly, and still provide good care,” says Leberstein, who points out that many organizations already operate in states that require minimum wage and overtime protections. “So they’ve either figured out a way to do it and still earn profits, or they’re admitting to violating the laws in their state.”

Asking the public to pick between providing quality care and treating workers fairly is ultimately a false choice wrought through a political culture of austerity. States could avoid this by increasing funds towards Medicare and Medicaid, which would help ensure that the disabled and elderly can access the high-quality and flexible care without compromising national labor standards and worker dignity.

Though the future of the law is still unknown, one thing is clear. This is an issue that cannot be put on hold—thousands of health homecare workers live in poverty and 10,000 more baby boomers turn 65 every single day.

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At UN Conference, Domestic Workers Push for International Labor Standards

Originally published in In These Times on March 19th, 2015.
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Between March 9 and March 20, member states and global NGOs gathered at the United Nations (UN) Headquarters in New York City to commemorate the 20th anniversary of the Beijing Declaration and the Platform for Action, the key international policy document aiming to achieve gender equality. Coinciding with the conference, the Clinton and Gates Foundations released No Ceilings: The Full Participation Report, which traces women’s demonstrable progress in global health and education since 1995, as well as their insufficient gains in economic participation, leadership and security. Dignitaries, celebrities, and philanthropists gave speeches calling for “50-50 by 2030”—meaning full gender equality in the next in 15 years.

Mobilized at the conference was a group whose organized presence was simply non-existent two decades ago. Representatives from the fast-growing global domestic workers movement came to New York to pressure the international community for the ratification and implementation of labor standards that would impact more than 52 million domestic workers all over the world, 83% of whom are women.

Domestic Workers’ Momentum

The domestic workers movement is relatively young; their first international gathering took place not even a decade ago, convening in 2006 for a conference hosted by the largest trade union in the Netherlands. Three years later, at the International Labour Conference in Geneva, they formed the International Domestic Workers Network (IDWN), tasked with organizing for an ILO Convention that would protect domestic workers’ rights. Two years later, in June 2011, ILO Convention C189 was adopted—marking a watershed moment for the movement.

ILO C189 outlines clear domestic labor standards, calling for, among other things, a guaranteed minimum wage, freedom of association, the right to collectively bargain, abolition of child labor, protection from abuse and harassment, at least one day per week of rest, formal employment contracts, social security and maternity leave. The convention was adopted with 396 votes in favor, 16 votes against, and 63 abstentions; the convention went into effect beginning in 2013, and today 17 countries have ratified it.

“After 2011, we finally had a rallying point for which we could gather internationally and push this issue,” says Daniel Naujoks, a political scientist at Columbia University who attended the recent UN conference. “C189 made it non-refutable, not just a pipe dream. Now you had this strong international backing and normative framing.”

After the adoption of C189, the IDWN decided to evolve from a loose international network into a formal federation, organizing its membership base and drafting a constitution. By October 2013, the International Domestic Workers Federation (IDWF) officially launched.

“Once things start to get really concrete, like with the passage of conventions, there becomes incentives for networks to form associations,” says Naujoks. “It is a legal entity that actually represents [domestic workers], whereas a network doesn’t really have representative functions.”

One of the IDWF’s central goals for this UN conference was to ensure that the implementation of C189 remained high on leaders’ agenda for the next 20 years. “We are talking about at least 52 million very poor working women without rights,” says Elizabeth Tang, the IDWF’s General Secretary who flew from Hong Kong to attend the conference. “If the government can at least implement this convention, that will be a very concrete achievement for gender equality.” Though there has been real progress made since C189’s passage in 2011, Tang says it is too slow, and too many governments still do not understand why they should take heed.

“We want things to look very different when we convene again in 2030,” says Barbara Young, a national organizer with the National Domestic Workers Alliance, a group that represents domestic workers in the United States.

International Gains and an International Problem

Activists can point to some notable achievements since the passage of C189. For example, in 2013, Brazil adopted a constitutional amendment granting 6.5 million domestic workers overtime pay, unemployment insurance, pensions, and a maximum 8-hour work day. In Africa over the past few years, NamibiaZambia, Kenya and Tanzania all passed minimum wage laws for domestic workers. In 2012, Thailand passed a new regulation entitling domestic workers to at least one day off per week, in addition to public holidays, paid sick leave and paid overtime for work on holidays. The first Pakistani Domestic Workers Trade Union formed this past December.

“In Hong Kong, all domestic workers, including migrant workers, are covered by the same labor law as other local workers,” says Tang. “We are now trying to show other governments that it is possible to protect domestic workers like other workers, because in some places it is already happening.”

Though there is a country-by-country approach, given the global ramifications wrought through the employment of migrant labor, domestic workers’ rights are an international issue. The UN conference discussed the problem of “global care chains”—where people feel compelled to move from one (typically poor) country to another (typically richer) country to care for someone else’s children and aging parents—often leaving their own children and parents behind.

Sexual abuse regularly occurs during the migration process, and with the threat of being fired or deported, women are strongly discouraged from reporting abuse or seeking medical attention.

“We must end visa dependency on employers and husbands that undermine women’s safety and rights,” said Young in a speech at the UN. “We must advocate for clear and accessible pathways to citizenship that will allow all migrant women workers to come out of the shadows.”

The organizers hope to raise domestic labor standards and formalize interactions—ideally through written employment contracts. Currently there are few remedies, practically speaking, for domestic workers with grievances.

“Once [domestic work] is recognized as a ‘real job,’ then it will count as job experience,” says Naujoks. “And by formalizing it, it gives people a greater opportunity to opt out if they want to go somewhere else later. As long as it’s seen as informal work, it becomes very difficult to break into the traditional labor market.”

The tide may be turning for domestic workers, but serious challenges remain. Some are practical; there are questions about how to best implement and enforce the laws and conventions in a feasible way. However, with centuries of racial and gender discrimination, most challenges facing domestic workers are ideological.

“Domestic workers are mostly women, and people in general look down on what women do,” says Tang. “The other problem is race and ethnicity, because a lot of domestic workers are from indigenous and marginalized groups, so they are discriminated against.”

Moreover, there exists a widespread perception that many domestic workers are living in countries illegally and thus are seen as a less important political constituency to help. And the longstanding cultural opposition to seeing care work as formal labor remains.

“Some people always say, ‘Oh well this is a private affair,’” says Naujoks.

Progress in the United States

Barbara Young, who migrated from Barbados, worked as a domestic worker in New York City for 17 years. She began organizing for better labor conditions in 2001, while she was still a full-time domestic worker. Young joined with others to push for the nation’s first domestic workers bill of rights, which passed in New York in 2010. The historic law grants domestic workers—including undocumented domestic workers—time off, overtime pay, protection from discrimination and inclusion in local labor laws. Since 2010, three more states have passed similar bills, and Connecticut’s version will soon be headed to a Senate vote.

At the UN conference, Young pointed out that only 27% of U.S. employment visas are issued to women, and the majority who migrate through legal channels are legally dependent on their employers and husbands. This can, and does often, entrap them in abusive and exploitative situations with little or no legal recourse. Young called for the UN to help grant women “the right to report abuses and violations and for violators to be prosecuted to the fullest extent of the law.”

Unlike the majority of domestic workers around the world who are can form trade unions, most U.S. domestic workers are legally barred from joining unions. This is due to a clause in the National Labor Relations Act passed in 1935, designed by Southern legislators to prevent African-American domestic and agricultural workers from organizing. Young tells me she believes removing this clause is their biggest organizing challenge.

Though the U.S. voted in favor of C189 in 2011, it has not ratified the international convention. Ideally, Young says, all sectors of the labor movement would unite together to push for U.S. ratification, but she notes the labor movement’s declining strength. The Department of Labor did announce in 2013 that it would begin to extend overtime and minimum wage protections to the majority of domestic workers; this is expected to go into effect later this year.

“Overall, we are on a forward trajectory, and the momentum is growing,” says Young. “Real recognition is there that we didn’t have 15-20 years ago.”