Posted by: John Gilliland
July 11, 2007
Topic: Wage & Hour

previously posted April 17, 2007 

Yesterday, the U.S. Supreme Court heard oral arguments in Coke v. Long Island Care at Home. That is the case which will determine whether or not home care agencies can use the federal companionship services exemption from minimum wage and overtime pay.

The companionship services exemption is a complete exemption from minimum wage and overtime pay for employees who fall within it. It is a very important exemption for many home care agencies because it can apply to home health aides, cna's, companions, sitters, live-ins and similar employees. (Note, however, that, even though an employee is exempt from minimum wage and overtime pay under the federal law, he or she may still be entitled to either or both under a state wage and hour law.)

If you want to know more about the companionship services exemption, there is an article about it that I wrote on the website of the National Private Duty Association. Go to:

http://www.privatedutyhomecare.org

The link to the article is at the lower, right of NPDA's home page. It is dated in terms of the Supreme Court but it will give you an overview of the exemption, itself.

Maria Tsigas, Editor of Private Duty Insider ("PDI"), attended the oral argument before the Supreme Court on Monday. Information concerning PDI is at:

http://store.homehealthinteractive.com/store/productdetails.aspx?pid=PD

Yesterday, Maria sent a brief e-mail to PDI subscribers concerning what was said during the argument before the court. She quoted Justice Stephen Breyer as observing that, if the exemption applied only to those hired "by the household" (as opposed to home care agencies), then "... the millions of people who need care, won't be able to get it."

His comment reminded me of something I have felt for some years as exemptions from minimum wage and overtime pay for caregivers are discussed. We are not debating the real issue. We debate the meaning and wording of the federal wage and hour law, the "Fair Labor Standards Act," and its regulations. Of course, that is much of the issue legally. However, we do not discuss the underlying public policy issue which must be resolved as our population ages.

To me, the policy issue we must address is who is society going to prefer - the employee or the patient/client? The companionship services exemption is in the middle of two, important public policies. First, is the desire to assure many workers at least a minimum wage and overtime pay. Second, is the desire to have affordable care for the aged and infirm.

Which public policy is to take precedence? If caregivers must be paid minimum wage and overtime pay, it can make their services unaffordable to many patients/clients. On the other hand, to have affordable care, it can mean not having to pay minimum wage and overtime pay. Or, is there a way to accomplish both?

Of course, there is more to it than that simple one or the other characterization. But, it is the issue that needs to be discussed seriously. I know of no one who is doing so.

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