The Anti-Union Bosses’ Group Fighting Fast Food Organizing Is Now Going After Home Care Workers

Can workers centers and unions create a movement strong enough to fight back?

Mariya Strauss, Political Research Associates June 24, 2015

(Department of Labor)

The home health aide in scrubs push­ing a clien­t’s wheel­chair up the ramp from street to side­walk may appear to have lit­tle in com­mon with a cashier at McDon­alds or Piz­za Hut. But chances are, the com­pa­ny that employs the home care atten­dant is part of the same type of nation­al fran­chise struc­ture that the burg­er giant and oth­er fast food com­pa­nies use. And just as it has for fast food cor­po­ra­tions, the industry’s lob­by­ing out­fit, the Inter­na­tion­al Fran­chise Asso­ci­a­tion (IFA), is suing on behalf of home health cor­po­ra­tions to keep work­ers’ pay low.

For-profit home care employers are taking federal dollars and using them to hire workers at subminimum wages—with virtually no public accountability.

The IFA has already emerged as one of the pri­ma­ry oppo­nents of the Fight for 15, the SEIU-backed move­ment that advo­cates for a $15-an-hour min­i­mum wage and the union­iza­tion of fast food work­ers. Wher­ev­er employ­ers lash back against the Fight for 15, the IFA is there: help­ing McDonald’s argue to the Nation­al Labor Rela­tions Board that it is not respon­si­ble for fran­chisees’ wage theft and work­place abus­es; try­ing to block a new rule at the NLRB that would speed up the union elec­tion process; suing to sup­press Seat­tle’s recent min­i­mum wage increase to $15 per hour.

The [Seat­tle] ordi­nance is clear­ly dis­crim­i­na­to­ry and would harm hard-work­ing small busi­ness own­ers who hap­pen to be fran­chisees,” railed IFA Pres­i­dent and CEO Steve Caldeira after the groups’ argu­ment failed the first round in court. Those who have set out to destroy the long-accept­ed, time-test­ed and proven fran­chise busi­ness mod­el must be stopped.”

And now, the IFA is suing the fed­er­al gov­ern­ment in an attempt to keep home health aides from earn­ing the min­i­mum wage and over­time pay.

Prof­it­ing from care

Instead of sell­ing burg­ers or piz­za, for-prof­it home care staffing agen­cies such as Bright­Star sell the care, com­pan­ion­ship and feed­ing ser­vices that seniors and peo­ple with dis­abil­i­ties once typ­i­cal­ly received in a nurs­ing home. Many peo­ple, such as Rosa Hen­dricks, who was pro­filed in a 2011 Nation­al Pub­lic Radio series that exam­ined the ben­e­fits of home care ver­sus nurs­ing homes, pre­fer to live at home. Hen­dricks put it this way: It makes you feel so much bet­ter and know that you are somebody.”

[Home-based care] is prefer­able to nurs­ing home care for many rea­sons. But we have got­ten it on the cheap,” says Eileen Boris, a women’s stud­ies pro­fes­sor at the Uni­ver­si­ty of California/​Santa Bar­bara. Tak­ing advan­tage of a Jim Crow-era loop­hole in fed­er­al labor law known as the com­pan­ion­ship exemp­tion,” com­pa­nies like Bright­Star can legal­ly pay the near­ly 2 mil­lion home care work­ers in the Unit­ed States at less than the min­i­mum wage (as lit­tle as the mar­ket allows), and have the option to not pay overtime.

Like agri­cul­tur­al work­ers, anoth­er then-most­ly African-Amer­i­can sec­tor, home care work­ers were carved out of the 1938 Fair Labor Stan­dards Act (FLSA) (which set wage and hour pro­tec­tions for near­ly all oth­er work­ers) and again when Con­gress amend­ed the FLSA in 1974. Home care work­ers can be paid less than the $7.25 per hour fed­er­al min­i­mum wage and aren’t enti­tled to over­time pay in rough­ly half of the 50 states.

Such low wages have a pro­found impact on home care work­ers. I’m not able to save any­thing,” says 53-year old Mar­i­lyn Black­ett, who has been a home­care work­er in Brook­lyn, New York for the past 14 years. I try not to ask fam­i­ly mem­bers [for mon­ey]. You don’t let peo­ple know what’s hap­pen­ing to you.”

Since the mid-20th cen­tu­ry, Boris says, the struc­ture of the [home-care] indus­try was built in part on this exemp­tion.” Accord­ing to an August 2014 study in Health Affairs, the major­i­ty — 62 per­cent — of the home care indus­try con­sists of for-prof­it fran­chis­es. It’s a lucra­tive mod­el: the indus­try rakes in $84 bil­lion a year, with medi­an rev­enue for a sin­gle fran­chise at around $2 mil­lion, accord­ing to one indus­try study.

The rel­a­tive­ly low start-up cost of home health care fran­chis­es (around $150,000 or less, com­pared with around a half mil­lion dol­lars to start a fast food fran­chise), com­bined with the cheap labor, has trig­gered a home-care boom.

Fran­chisors such as Bright­Star, run by CEO Shelly Sun (who also serves as IFA trea­sur­er), are tak­ing advan­tage of this bur­geon­ing demand. Sun and her hus­band and busi­ness part­ner, as Sarah Jaffe wrote recent­ly in Dame mag­a­zine, have boast­ed that they had no med­ical, home-care, or health-care expe­ri­ence when they start­ed their busi­ness, and that would-be fran­chisees need none either.” Fran­chisors and fran­chisees leave such health care exper­tise to the actu­al home care atten­dant — the per­son who lifts the client, helps her eat, mops up her mess­es, reminds her to take her med­ica­tion, reads to her, takes her to the gro­cery store.

What’s more, fed­er­al dol­lars are flow­ing to these for-prof­it staffing agen­cies. In most states, the per­son receiv­ing care can pay for it out of his or her Social Secu­ri­ty check — or have it paid for by Medicare or Med­ic­aid. It was the avail­abil­i­ty of hir­ing peo­ple using fed­er­al monies … that allowed the fran­chise indus­try to blos­som,” says Boris.

In oth­er words, for-prof­it home care employ­ers are tak­ing fed­er­al dol­lars and using them to hire work­ers at sub­min­i­mum wages — with vir­tu­al­ly no pub­lic accountability.

For-prof­it home care agen­cies are bleed­ing Medicare,” Steffie Wool­han­dler, a pro­fes­sor at the City Uni­ver­si­ty of New York’s School of Pub­lic Health and senior author of the Health Affairs analy­sis told Mod­ern Health­care mag­a­zine in August 2014. And lack of reg­u­la­to­ry over­sight means qual­i­ty of care also suf­fers. Wool­han­dler and her co-authors con­clud­ed that, Over­all, it appears that pro­pri­etary (for-prof­it) home-care agen­cies deliv­er slight­ly low­er-qual­i­ty care at a sub­stan­tial­ly high­er cost.”

David Weil, head of the U.S. Depart­ment of Labor’s Wage and Hour Divi­sion, rec­og­nizes that action is need­ed to reverse this race to the bot­tom. In Sep­tem­ber 2013, his agency issued a final rule to close the com­pan­ion­ship loop­hole. The home care indus­try prompt­ly sued Weil, with the IFA as one of the lead plain­tiffs. The case, Home Care Asso­ci­a­tion of Amer­i­ca v. Weil, is now in fed­er­al court; the DC Cir­cuit Court of Appeals has expe­dit­ed the case and could issue a deci­sion at any moment. In the mean­time, the exemp­tion remains in place.

With the U.S. senior pop­u­la­tion pro­ject­ed to reach 88.5 mil­lion, or 20 per­cent of the total pop­u­la­tion, by 2050, the demand for home care ser­vices is on the rise. The job of home health aide is now the third fastest grow­ing occu­pa­tion in the Unit­ed States, accord­ing to Forbes. If the IFA and home health com­pa­nies are able to per­suade the courts to keep the com­pan­ion­ship exemp­tion, CEOs like Sun will see their prof­its grow while work­ers remain in poverty.

A com­mon foe

With home care work­ers and fast food work­ers fac­ing a com­mon ene­my, the ques­tion aris­es: Can they join and cre­ate a sin­gle move­ment for work­place jus­tice in the fran­chised economy?

Two sep­a­rate, non-tra­di­tion­al work­er orga­niz­ing cam­paigns are under­way in the fast food and home care indus­tries. But the fran­chised struc­ture of these indus­tries presents unique chal­lenges for work­ers who may wish to actu­al­ly form labor unions: it isn’t always clear whether the fran­chisor (the brand) or the fran­chisee (the store­front owner/​operator) is respon­si­ble for set­ting wages and work­place conditions. 

What’s more, home care work­ers are in some states explic­it­ly pro­hib­it­ed from form­ing labor unions — and where they can form unions, the Supreme Court last sum­mer ruled in Har­ris v. Quinn that the work­ers can­not be required to join or pay the fees that would keep the union run­ning. Because of these and oth­er chal­lenges, the two cam­paigns — SEIU’s Fight for 15 for the fast food work­ers and the coali­tion-based Car­ing Across Gen­er­a­tions for the home care work­ers — focus more on advo­cat­ing for work­er-friend­ly poli­cies and reg­u­la­tions than on union­iz­ing these grow­ing workforces.

That said, SEIU is forg­ing ahead with orga­niz­ing fast food work­ers through Fight for 15, using short-term strikes to protest and raise aware­ness about the need for a liv­ing wage and the right to union­ize. Domes­tic work­ers, with their soli­tary shut­tling between clients’ homes, have his­tor­i­cal­ly been a tough group to bring togeth­er. But the Nation­al Domes­tic Work­ers’ Alliance (NDWA) and the SEIU have been orga­niz­ing them in recent years, with some suc­cess. NDWA is an alliance of over 40 local domes­tic work­er groups that orga­nize domes­tic work­ers for expand­ed rights and dig­ni­ty on the job, and push for laws to improve rights for domes­tic work­ers at the local, state and fed­er­al lev­els. Both groups say their cam­paigns aim to raise wages and ben­e­fits for the entire industry.

NDWA and its part­ners have won leg­isla­tive vic­to­ries on a Domes­tic Work­ers’ Bill of Rights in New York, Cal­i­for­nia, Ore­gon, Hawaii and else­where by build­ing com­mon cause with home care clients. With its Car­ing Across Gen­er­a­tions cam­paign, NDWA has formed region­al and state-based coali­tions with the fam­i­lies of the elder­ly peo­ple and peo­ple with dis­abil­i­ties that home care work­ers serve.

NDWA founder and direc­tor Ai-Jen Poo says that Car­ing Across Gen­er­a­tions is build­ing a coun­ter­force to the fran­chised home care indus­try’s unscrupu­lous pur­suit of prof­it over qual­i­ty care.

In it​s own com­plaint, the IFA said that their mis­sion is to pro­tect, enhance and pro­mote fran­chis­ing.’ You have to ask, should a trade asso­ci­a­tion like this be deter­min­ing the future of home­care for mil­lions of work­ers and consumers?”

As an alter­na­tive to the fran­chise sys­tem, work­ers’ orga­niz­ing efforts are start­ing to include devel­op­ing more work­er-friend­ly mod­els of employ­ment, such as work­er-owned coop­er­a­tives. Jaffe writes that in New York, work­er-owned Coop­er­a­tive Home Care Asso­ciates has more than 2,000 work­er-own­ers who make $16 an hour (more than twice the fed­er­al min­i­mum wage) plus ben­e­fits and have a guar­an­tee of work­ing hours.”

Home care work­ers are already orga­niz­ing through Car­ing Across Gen­er­a­tions, and SEIU’s par­tic­i­pa­tion pro­vides a nation­al infra­struc­ture that could allow Fight for 15 and home care work­ers to join forces to chal­lenge the IFA. SEIU’s own home care and fast food cam­paigns began in April to link up with a series of teach-ins and protests in SEIU Health­care’s Mid­west region, and such sol­i­dar­i­ty actions could extend to oth­er regions in the future.

But these are only begin­nings. As Maria de Fati­ma Moscani, a Mine­o­la, New York home care work­er with 14 years on the job, says: Some­thing has to be done about low pay, and the mon­ey is there. This is not accept­able at a human lev­el. The cost of liv­ing is sky­rock­et­ing, food is up, and rent is so much. How can we live?” With a jug­ger­naut of major fran­chised brands mov­ing against home care work­ers’ rights, anoth­er ques­tion sur­faces: Can fast food and home care work­ers cre­ate a move­ment pow­er­ful enough to fight back against the cor­po­rate forces up against them both?

Kelsey Howe and Jacey Rubin­stein con­tributed research to this arti­cle. A con­densed ver­sion of this arti­cle appeared in the August 2015 issue of In These Times under the title Treat­ing Old Peo­ple Like Hamburgers.”

Mariya Strauss is an eco­nom­ic jus­tice researcher with Polit­i­cal Research Asso­ciates. A Mary­land-based free­lance writer, her inves­tiga­tive jour­nal­ism and com­men­tary have been pub­lished in The Nation, at the Glob­al­Com­ment blog, The Pub­lic Eye mag­a­zine and else­where. You can fol­low her on Twit­ter at @mariyastrauss. You can read her oth­er sto­ries for In These Times here.
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