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Overtime Pay for California Home Health Aides Weighed in Washington

June 2, 2013

As the baby boom generation sails toward retirement and further into old age, the home health care industry is poised to see a boom.
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But exactly what that will look like, our Los Angeles labor attorneys know, is a matter of speculation, as the White House weighs a recommendation by the U.S. Department of Labor to impose mandatory overtime and minimum wages for home health care workers, same as everyone else.

You see, in most parts of the country, home health aides fare about the same as babysitters in terms of legal wage protections. That's because in 1974, Congress passed a law that actually lumped them in with babysitters in terms of labor laws. The argument was that 80 percent of what these individuals did was offer companionship, which meant playing cards or sitting and watching television. Only 20 percent of the time was spent doing actual work such as cooking, cleaning and shopping, according to Congress at the time. That is usually no longer the case today, but still most aides across the country earn less than minimum wage.

California is one of 22 states that has enacted a law entitling home health care workers to minimum wage, which it did in 2010. The law requires that any home health care worker - regardless of whether they are employed by a non-profit or the county and regardless of whether their duties don't go beyond feeding, dressing and supervising a person and regardless of whether they receive overtime - are entitled to the minimum wage, which is currently $8.00.

Fifteen states require overtime pay for those workers as well. California isn't one of them.

Labor unions say that needs to change.

The opposition to this move is fierce. The argument, according to patient advocates, is that forcing the issue of overtime will mean one of several scenarios.

Elderly and disabled patients who need constant care will be the least unable to afford the change. As such, they may reduce the amount of care they receive, which could have serious consequences to their health. Alternatively, because there won't be enough funds to pay overtime wages, they will be forced to accept strangers into their homes to cover the rest of the hours. Or, they may need to simply enter a state-funded nursing home, which is ultimately more expensive and patients tend not to do as well.

Patient advocates say the scenario is also bad for workers because although they will be entitled to overtime, their employer may not offer it, instead opting to hire more people, which will result in a drastic reduction of hours. There will be more jobs, but the quality of those jobs would be questionable, they say.

Some argue that seniors will be forced to turn to undocumented, unqualified workers if the prices go up.

But this plays right into the other side of the argument: That the work of home health care workers does require hard work, skill and dedication. As such, they should not be treated merely as casual high school babysitters, particularly when they are pivotal to the well-being of a growing number of individuals.

While some would argue that those who stay overnight with patients don't do much during that time, people forget that is time the worker must spend away from their families. It is time during which they are not free to do whatever they please. And in many cases, it's important to the patient, who may need help going to the bathroom several times each night or who may require immediate medical assistance if they've fallen or for some other reason. The home health care aide can summon that help.

Clearly, there are some issues to iron out, and this is not a one-sided coin.

But fact that these workers form a strong bond and genuinely care about those whom they care for should not negate their need to be treated fairly in the eyes of the law.

Los Angeles Employment Attorney VINCENT HOWARD at HOWARD LAW can help. Call toll-free at 1-800-872-5925 or send us a message online.

Additional Resources:
State's disabled could suffer if home care rules change, May 26, 2013, By Chris Megerian, Los Angeles Times

More Blog Entries:
House Passes PTO Alternative to Overtime Pay, May 21, 2013, Los Angeles Employment Lawyer Blog