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Bryant Whitten, LLP

Obama Administration proposes FLSA coverage for home care workers

Many families use the assistance of home care workers to help care for older family members. But, home care workers are not protected by federal wage and hour laws that guarantee minimum wage and overtime pay like other workers who receive an hourly wage. Things may soon change because the Obama Administration recently announced proposed regulations that would give home care workers minimum wage and overtime protection.

There are almost two million home care workers in the United States, and for over 30 years home care workers in California and elsewhere have been categorized as babysitters under an exemption in the Fair Labor Standards Act. The Fair Labor Standards Act is a federal law that guarantees minimum wage and overtime pay to covered workers.

While home care workers are not protected by the federal wage and overtime law, they may look to state minimum wage and overtime laws for protection. However, a significant number of home care workers lack protection because only 28 states have minimum wage and overtime laws that cover home care workers.

Home care workers generally earn more than federal minimum wage, which is $7.25 an hour, but not by much. According to industry figures, they earn between $8.50 and $12.00 an hour. Women overwhelmingly are home care workers and according to the White House nearly 30 percent are African-American and 12 percent are Hispanic.

Even though home care workers are usually paid the federal minimum wage, many home care workers currently do not receive time-and-a-half when they work more than 40 hours in a week.

As the population of the United States ages, the use of home care workers is predicted to grow. Currently six million of 40 million Americans age 65 or older require some form of daily assistance at home. That number is likely to double to 12 million by 2030.

The growth in demand of home care workers will require the need to attract reliable people and the removal of the exemption for home care workers under the FLSA will likely help. As President Obama said regarding the proposed regulation, home care workers "work hard and play by the rules," and deserve to be fairly compensated.

Source: The New York Times, "Wage protection for home care workers," Steven Greenhouse, Dec. 15, 2011

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