Thursday, Jun 20, 2013, 2:55 pm
Excluded from Federal Standards, California Home Aides Get Their Day in Court
When you don’t know who your boss is, whose fault is it when your paycheck never comes? A California court has just provided an answer to that predicament by allowing a worker to take the county government to court in a wage dispute.
Adelina Guerrero, an aide with Sonoma County’s In-Home Supportive Services (IHSS) program, was hired in 2008 to work seven days a week in the home of Alejandra Buenrostro, providing various personal care and housekeeping duties that Buenrostro required as a person with a disability. According to the suit, from early November through the end of January, Guerrero logged about 500 regular hours, plus nearly 90 hours of overtime—but never received a paycheck.
When Guerrero sought to recover her alleged lost wages in court, the county ducked responsibility, claiming that because the money for home care is not paid directly to the worker but to the beneficiary, the county government was not technically her boss. By the same token, the county said that it was not legally responsible complying with federal or state minimum wage and overtime laws.
The suit charges that “Buenrostro had been quietly submitting Guerrero's time sheets to the county and collecting her paychecks, which totaled more than $10,000," according to SF Gate. Guerrero is seeking $20,000 in damages.
Guerrero’s wage claim is still unresolved, but the California Supreme Court ruled that she can take the county to court. A jury will ultimately decide her case, based on whether her role in providing services through the county’s Medicaid-funded IHSS Program means that the county can be considered her "joint employer" and responsible for her back pay.
Jeffery Hoffman, an attorney in the case with California Rural Legal Assistance, tells ITT via email that “to make the determination as to whether someone is an employer under federal law," the court considers various circumstances, including whether the agency has the “power to hire or fire” and “supervision and control over the employee schedules or conditions of employment.”
Hoffman argues that under the IHSS program, "while the County and IHSS Public Authority did not have the exclusive authority to hire and fire providers, they have substantial power over the employment relationship by virtue of their control of the purse strings (i.e. payroll) and their control over the type of system they implemented to deliver IHSS program services."
The ruling against the county not only allows Guerrero's suit to move forward, but could also determine the legal rights of an IHSS workforce of about 356,000, which serves 448,000 beneficiaries in California. The program is targeted toward low-income people who are elderly or with disabilities, and may often be the only basis for them to live independently in their communities. The decision—which could also affect other states' Medicaid programs for in-home care—essentially leaves it to a jury to determine the exact nature of the employer-employee relationship and what the county owes Guerrero for the theft of her wages.
Guerrero’s job and her claims of workplace injustice reflect the complex realities of a growing sector of the healthcare system—a multifaceted chain of employment that paid her wages from public funds but had her working in a private home. Like all domestic workers, home care workers--who do everything from administering medicines to bathing patients to providing social and emotional support for homebound elderly--have highly personalized, stressful and often precarious jobs. Their shifts can easily stretch 12 hours or more, and in the cruelest cases, workers can see their wages stolen or overtime go unpaid.
In the booming home healthcare sector, (in which demand is expected to grow by 69 percent between 2010 and 2020), workers face particular barriers woven into federal labor law. In general, they are technically considered “companions” under the Fair Labor Standards Act (FLSA). Whereas other types of domestic work are covered by minimum wage laws, home healthcare workers remain bogged down by heavily gendered notions that their work does not involve skills that would warrant a decent wage and protections from abuse. In the absence of a federal base wage of $7.25 per hour, these workers' rights are generally contingent on state laws; currently they qualify for minimum wage in 21 states and the District of Columbia, some of which are higher than the federal minimum.
Groups like the National Domestic Workers Alliance (NDWA) have petitioned the Department of Labor to change the FLSA rules to extend protections to home health aides, and the Obama administration proposed a rule change in 2011, but has not moved forward with reviewing and implementing it.
Labor advocates say that as the need for home-based health services soars, and more families opt for community-based, in-home services rather than institutions like nursing homes, overhauling the “companionship” exemption would be a long-overdue upgrade of rules written when in-home care was seen merely as friendly help, not a profession involving a complex set of medical skills and services. (Likewise, the law did not contemplate that this job would become the career of more than one million workers, many of them women, immigrants, and household breadwinners).
In a testimony for the NDWA's Caring Across Generations Campaign, Nancy Salazar, a home aide from the Bronx, explained how her job demands selfless devotion, yet doesn't support her with a livable wage:
I'm okay with the hours, I'm not okay with the wages. I'm not okay with the pay. This is a caring job. This is something that you really have to love to do it. Because you're going into someone's home, and you're trying for them to get used to you. To like you, to trust you. You care about this person you're taking care of.
The proposed reforms face stiff resistance from industry lobbyists, who contend that wages are already sufficiently high and that additional regulation would only push up the cost of care. But employers tend to ignore the cost society pays when workers who provide vital health services can’t earn a living wage. Though Guerrero may soon get her day in court, many of her fellow workers are stuck in a business of providing priceless services in our homes, while being denied justice in their workplaces.
Michelle Chen is a contributing editor at In These Times, a contributor to Working In These Times, and an editor at CultureStrike. She is also a co-producer of Asia Pacific Forum on Pacifica's WBAI. Her work has appeared on Alternet, Colorlines.com, Ms., and The Nation, Newsday, and her old zine, cain. Follow her on Twitter at @meeshellchen or reach her at michellechen [at] inthesetimes [dot] com.