Home > Journals > LAWREVIEW > Vol. 85 > No. 2 (2011)
Where the Heart Is: Amending the Fair Labor Standards Act To Provide Wage and Overtime Pay Protection to Agency-Employed Home Health Aides
Part I of this Note explores the increasing demand for long-term senior care services and the vital role of home health aides within the direct care industry. Part I also examines the 1974 amendment to the FLSA that created the companionship exemption and illustrates that in using the term "companion" Congress did not intend to exclude workers formally employed by private, for-profit agencies. Part II explores litigation surrounding the companionship exemption, and, in particular, courts' unfavorable treatment of home health aides' claims for overtime pay. Part II also examines the DOL's third party rule, which extends the companionship exemption to home health aides employed by third party agencies, and the Supreme Court's deference to the rule in Coke. Part II argues that in light of Coke and the crisis the companionship exemption poses to quality senior care, Congress should amend the exemption to bring the FLSA in line with its original intent.
Part III examines potential legislative responses to Coke and argues that the proposed 2007 Fair Home Health Care Act is the best option for extending wage and overtime protection to home health aides. Part III seeks to make the Act an affordable option by proposing an accompanying tax-incentive aimed at home health agencies, which will offset a percentage of an agency's wage expenditures per employee. This solution: (1) restores a federal cause of action for home health aides employed by third party agencies; (2) allows increased costs to be absorbed by agencies rather than consumers, who in turn rely on already burdened Medicare and Medicaid systems; and (3) will attract new and competent workers to the home health profession thereby increasing access to quality, affordable senior care and meeting the demand of America's booming senior population. Indeed, the Fair Home Health Care Act is not only imperative to ensuring quality long-term care but a necessary and overdue affirmation of the dignity of home health care workers and the people they serve.