Amicus Curiae Brief — Long Island Care at Home, Ltd. v. Coke

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Text

No. 06-593

IN THE

Supreme Court of the United States

LONG ISLAND CARE AT HOME, LTD. AND

MARYANN OSBORNE,

Petitioners.

¥.

EVELYN COKE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE ALLIANCE FOR RETIRED

AMERICANS, AMERICAN ASSOCIATION OF

PEOPLE WITH DISABILITIES, AMERICAN

FEDERATION OF LABOR AND CONGRESS

OF INDUSTRIAL ORGANIZATIONS AND

CHANGE TO WIN AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

CAROL R. GOLUBOCK JONATHAN P. HIATT

1800 Massachusetts Avenue. NW JAMES B. COPPESS

Washington, DC 20036 (Counsel of Record)

Sracty i. Levron I: Sixteenth mae NW

“ae aed a Washington, DC 20006

177 Post Street, Suite 300 2)?) 637-5337

San Francisco, CA 94108 ws

PATRICK J. SZYMANSKI

1900 L. Street. NW

Washington, DC 20036

Wii SON-EPES PRINTING CO.,INC —- (202) 789-0096 — WASHINGTON, D C 20002

® E> 6o

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT ............ccccccceseseeseeeeeeees

I].

il.

CONGRESS EXEMPTED A NARROW

GROUP OF INDIVIDUALS THAT DID

NOT REL¥“@N—BOMESTIC EMPLOY-

MENT FOR ESSENTIAL INCOME FROM

THE 1974 FLSA EXTENSION TO

HOUSEHOLD-EMPLOYED DOMESTIC

SRE SEL OE

HOME CARE WORKERS EMPLOYED BY

AGENCIES ARE THE TYPE OF DOMES-

TIC WORKERS CONGRESS INTENDED

pte Bt sg Df eee

A. Agency home care work is a bread-

I I, ncetitesiccncteccnnnncinisniaiicnnninnsin

B. Agency home care work involves the type

of domestic work that Congress intended

NE, siclictiscieitiiuiisiiiictiinisntmasiatimantiadeanianeniinn

C. Congress intended the exemption to apply

to individual households, not to agency

NR iccincscntnicninnvcemeranvennsvmatvinmanpa

AFFIRMING THE SECOND CIRCUIT'S

DECISION WILL NOT PRODUCE THE

DIRE CONSEQUENCES PREDICTED BY.

PETITIONERS AND AMICL. ...........::cccceseeeeeees

A. Predictions that FLSA coverage will harm

the quality and availability of care are.

speculative and UNtruc. ................:ccccceeeeenees

(i)

TABLE OF CONTENTS—Continued

Page

B. FLSA coverage will help increase and

stabilize the labor supply to meet the

growing demand for home care services. ..... 20

ITT ciinscnsancessincnenssovensnisinsenniuninesnisinaiieseiiansenss 27

iil

TABLE OF AUTHORITIES

CASES

Ankh Services, Inc., 243 NLRB 478 (1979)..........

Ball v. Biedess, 2004 WL 2566262 (Aug. 13,

Bzdawka v. Milwaukee County, 238 F.R.D. 469

SS. SUT WINE Wiig A ieicerseceniessisitimiptentcisleincinines

Nelson v. Milwaukee County, 2006 WL 290510

Se UN oq A actinsishisinccntiinninnsininsittionneecs

Sanchez v. Johnson, 416 F.3d 1051 (9th Cir.

FEDERAL STATUTES AND REGULATIONS

SO OL LL., © DIB assccsescsecnsscxscerecssnncesenrsncceene

“I Se

eT ee ee

Pte ode yt >, | aan nae

42 U.S.C. § 1396a(a)(3O)(A) -cceccscssecescesseecsssseeeesen

26 CF.R. § 403.809 (1949) ...cccccccssecscssssesssseeessesees

re | TY nmr ae

STATE STATUTES AND REGULATIONS

Alaska Admin. Code tit. 8, § 15.910 00...

Pa TE, © FP OD scttiticincicicbcaccnnnivitnnncnsensien

FE I, © rc aiierscinncissncininsinniniinnniinnann

TE, © FPO csinevtsernntntivtrienniiinanen

7 Colo. Code Regs. § 1103-1(1) to § 1103-1(6)....

Haw. Rev. Stat. § 387-1 to § 387-3... eeeeees

Ill. Admin. Code tit. 56, § 210.110.000.000. eee

S20 Bil. Comp. Stat. 105/3(d)........00ceccescorsessseessceee

820 Ill. Comp. Stat. 105/4(a)(1) ...... eee eee eceeeeeeeees

ee ets I, TINE, Fie ccctriiccsececconenenenntosconesee

Kan. Admin. Regs. § 49-30-1(h) .........:.c.:ceeeeeeeeee

TABLE OF AUTHORITIES—Continued

Page

Kan. Stat. Ann. § 44-1202(e)(2) ..........:ccccceeeseeseees 15

By Sy BANG SPIED dacenciscecctveneciiocntsbinninoneteans 15

Bee Sits Aes Se II cccseicoconsonectccencstvesesereees 15

Md. Code Ann., Lab. & Empl. § 3-413 .....00..00...... 15

Md. Code Ann., Lab. & Empl. § 3-415 ..0........00.0.. 15

Mass. Gen. Laws ch. 151, §§ 1-3 oe. eee eeeeeees 15

Mich. Comp. Laws § 408.383 .............:c000008 Divine 15

Mich. Comp. Laws § 408.384 .0.........ccccceccceeseesseees 15

Mich. Comp. Laws § 408.394(2)(a) .............0:c0008 15

KR | SSE nora 15

|: EE. Ser eee er 15

St IS Si UII cessianienbielinaindioniseeiasinsinnaignanieinciinnn 15

Mont. Code Ann. § 39-3-404.0000...ccceececceeesseeeeees 15-16

Mont. Code Ann. § 39-3-405 0000... cceececeeeeeereeeenes 15-16

Mont. Code Ann. § 39-3-406......0......ccccceeceseeeeseeees 15-16

Se ns SI A I cnccnccisisnciaiinndcenedennsiasnacnsen 15

NOV. Rev. Stat. § GOB.O1G.......cccorcscecsccccescessessesseseses 15

a ents Is Se GUE inanicnciseserscneseiesncpsctinsonen 15

N.J. Stat. Artn. § 34:11-56a4 00... eee eecsteeeeeeeees 1$

N.Y. Comp. Codes R. & Regs. tit. 18,

i cee hice tiesiinaliesits 19

N.Y. Comp. Codes R. & Regs. tit. 18,

FD. BREE F PIE Pe ccvccccncsonnsscossccscecconcsonsecs 19

ee RD icctreiictictninididnciensennminsionin 15-16

GS PG. Come. Bath, § FSS.1OG ....ccscvecesssesccoveseososevess 15-16

43 Pa. Cons. Stat. § 333.105(a)(2)...........ceeseeeeees 15-16

S.D. Codified Laws § 60-11-3............ccseeeeeeeeeees 15

Wash. Rev. Code § 49.46.010(5)(b)..............0:eeee 15-16

Wash. Rev. Code § 49.46.010(5)(j)...............:ecee 15-16

Wash. Rev. Code § 49.46.020 .........ccccecceeeeeseeeeees 15-16

Wash. Rev. Code § 49.46.1300 .............:ccccccsssereeeees . 15-16

WW. VG. Come § 21-S) 68 B00 ....rcccvseeccessesesevesseeses 15

Wis. Admin. Code DWD § 272.03 ..0.......cceceeeee: 15-16

TABLE OF AUTHORITIES—Continued

Page

Wis. Admin. Code DWD § 272.06..............::cceeeeee 15-16

Wis. Admin. Code DWD § 247.015 ............::00:0000 15-16

Wis. Admin. Code DWD § 274.03 ..........ceeeeeeees 15-16

LEGISLATIVE MATERIALS

118 Cong. Rec. (1972)

Bh, BR FU ctacsseneneccsrensennennnsenevenicensiiieimniuialtiiia 22

119 Cong. Rec. (1973)

Be BEA BID ccerccscvencesscnseotnsonnsesninntinepiniuneanienamiinilite 13

1, TEAGS ccveenesnssscseennnsnsenecsnincnvindtadianteanebandesiniti 4,21

Op, FE Fane exsacorsnsnresensseecsecensiasbiienecnsenetenieginionitne 21

Bh, BIO FIIID <ncocesensccsnssesenininnvsnsscssesiaimnnniiisntibniiian 20

1. BRAID «corescovsnssoseensnensssnevestsnnpesninbimmnssneuisdeniite 13

Sh, UG IPF cévcceucencsentevesaninnetnsssinaitoinmmnnniaiaialn 5

Di, BP FOE <scicuncsstnninimereneneetinintdnienidmmmiaaaial 13

D., BA FO ~xccsnsesesesseewensaveeentatsianianiemaaiuiiiin 20

1, BPRIEINS <ocsecescsresesescssnsessenvinednesininenisasianeeaai 5

i, FPRIIEEED soxcevsicnecsondindsneniincinsnsiinisaeineiadndaiintniaaad 21

i, FIED iconsstnsssssonestoceatesinesiedniieianestiaaiiin 4

Ih. ZAI nsscsescscnsvionsousinicusansenenmnmansseseiaienlaneiaal 21

Dh, DEAT ccccusevescescnstntpniectesenseniniineenioniapeniaianal 21

De, DTD vcvsvsiniocnsssscnsenssinetsonnannnsitouisimeiauedi 21

IDL. SUED sccscssesenenionssinnsebenehincsecinintiiaaiainanadn 21

120 Cong. Rec. (1974)

0, TEE FP scnsoxosenersnsacninianeciinnevenssstvenineiuannabpenneniniaial 21

i, SEE TP ncnncvecnsesnstesnionssscsnscnpemeeionedenenianeanniians 4

MLR. Ram. No. 93-232 CIF TS) ..cecccosrccssovsescosscessocere 13

H.R. Rep. No. 93-913 (1974) ......ccccessscsorccsercessssees 5

S. Rep. No. 93-300 (1973)......ccrecsoresessosesosseesores 13, 16, 20

S. Rate. Pee. FoF (IGT a cceccccessssmoscosesesennsintcinnes 5

S. Reap. DED. FS<GID CPF P49) cccccssvscsoscccscssnononisenssnni 4,5, 20

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS Page

About TLC Health Care Services, http://www.

tlcathome.com/AboutUs/tabid/52/Default.aspx 13

Addus HealthCare Services: Company Profile,

http://WWW.addus.COM/ ...............cccsseeeescesseeeeeeees 13

Application of Fair Labor Standards Act to

Domestic Service, 66 Fed. Reg. 5481 (2001)

(to be codified at 29 C.F.R. pt. 552) (proposed

TR 6-11, 19, 25

Bureau of Labor Statistics, U.S. Department of

Labor, Occupational Outlook Handbook 2006-

2007 (available at http://www.bls.gov/oco/

ET ee 7-8, 11-12, 23, 25

The Caregiving Project, Caregiving in America

(Schmieding Foundation) (available at http://

www.schmiedingcenter.org/pdf/caregiving in

Insurance to IHSS Providers (Home Care

Workers) in Los Angeles County: Report to the

California HealthCare Foundation (2000)

(available at http://www.chcf.org/documents/

TTT TESS a ea 8-9

General Accounting Office, Adults with Severe

Disabilities: Federal and State Approaches for

Personal Care and Other Services, GAO/

HEHS-99-101 (May 1999) ............cccsscsescesseeeees 18, 25

Gentiva At a Glance, http://www.gentiva.com/

rec catemtaenmniucionennne 13

Jane Gross, New Options (and Risks) in Home

Care for Elderly, N.Y. Times, Mar. 1, 2007 . 12-13, 25

Vil

TABLE OF AUTHORITIES—Continued

Susan Harmuth & Susan Dyson, Results of the

2005 National Survey of State Initiatives on

the Long-Term Care Direct-Care Workforce

(National Clearinghouse on the Direct Care

Workforce & Direct Care Workers Ass'n of

N.C.: 2005) (available at http://www.direct

careclearinghouse.org/download/2005_ Nat Su

rvey_ State Initiatives.pdf) ......0.......ccceeeseeeseeee

Wan He et al., 65+ in the United States: 2005

(U.S. Dep’t Health & Human Servs. & U.S.

Census Bureau: Dec. 2005) (available at http://

www.census.gov/prod/2006pubs/p23-209.pdf).

Daniel E. Hecker, Occupational Employment

Projects to 2014, Monthly Labor Rev., Nov.

IIIT cnclitnisescessctennicnsiienenumnensintibinsusmsimmediibiesenes

Candace Howes, Upgrading California's Home

Care Workforce: The Impact of Political

Action and Unionization (Univ. Cal. Institute

for Labor and Employment: 2004) (available

at http://repositories.cdlib.org/ile/scl2004/03/)..

H. Stephen Kaye et al., Zhe Personal Assistance

Workforce: Trends in Supply and Demand,

25:4 Health Affairs 1113 (2006) .............. ee

Allen J. LeBlanc et al., State Medicaid Programs

Offering Personal Care Services, 22:4 Health

Page

8-9

Care Financing Rev. 155 (2001).............. 17-19, 22, 27

Rhonda J. V. Montgomery et al., A Profile of

Home Care Workers from the 2000 Census:

Fiow It Changes What We Know, 45:5 Geren-

I ee irccininnnccnntinnstvnanesitnenetenntitins

National Association for Home Care and

Hospice, Basic Statistics about Home Care

(2001) (available at http://www.nahc.org/

I iccctiinitiaiiiiiitintnatiiniaaintinanes

Viil

TABLE OF AUTHORITIES-—Continued

National Association for Home Care and

Hospice, Basic Statistics about Home Caré

(2004) (available at http://www.nahc.org/

RSIS seater ere Sa

National Center for Health Workforce Analyses

et al., Nursing Aides, Home Health Aides, and

Related Health Care Occupations National

and Local Workforce Shortages and Associ-

ated Data Needs (U.S. Dep’t Health and

. Human Servs.: 2004) (available at ttp://ftp.

hrsa.gov/bhpr/nationalcenter/RNandHomeAid

Page

LAL LIRA RE RAE 6-7, 12, 22, 25

New York Association of Homes & Services for

the Aging, 7he Staffing Crisis in New York's

Continuing Care System: A Comprehensive

Analysis and Recommendations (2000)

(available at http://www.nyahsa.org/docs/

Opinion Letter MW-2002-020, Mass. Dept. of

Labor, Div. of Occupational Safety (July 19,

2002), available ai www.mass.gov/dos/mw_

GBC IEE BIR oncsccesevescecesecessessesecccesees

Our History and Services, http://www.interim

healthcare.com/abouvstaffingstory aspx ...........

Paraprofessional Healthcare Institute, Long-Term

Care Financing and the Long-Term Care

Workforce Crisis: Causes and Solutions

(Citizens for Long-Term Care: 2003)

(available at hitp://www.paraprofessional,org/

publications/CLTC doc_rev1.pdf)..........0...0.

25-26

TABLE OF AUTHORITIES—Continued

Paraprofessional Healthcare Institute, The Right

People for the Job, 1:1 Workforce Tools 1

(Fall 2002) (available at http://www.para

professional.org/publications/WorkforceTools

_ Eh sctitinenertipcinneecepenainnesamandiniieninetiin

Press Release: The Accredited Family of Home

Care Services celebrates 25 years of

excellence (Apr. 14, 2005) http://www.

accreditednursing.com/pdf/Press%20Release%

William J. Scanlon, Nursing Workforce, Recruit-

ment and Retention of Nurses and Nurse Aides

ls a Growing Concern: Testimony before the

Senate Committee on Health, Education,

Labor and Pensions, GAQO-01-750T (released

May 17, 2001) (available at http://www.gao.

Page

gov/new.items/d01750t.pdf) ...............::c000 9-10, 22-25

Dorie Seavey & Vera Salter, Paying for Quality

Care: State and Local Strategies for

Improving Wages and Benefits for Personal

Care Assistants (American Ass'n of Retired

Persons: 2006) (available at http://assets.aarp.

org/rgcenter/il/2006 18 care.pdf)................. 19, 25-26

State Medicaid Manual, CMS Pub. 45 § 4480

(available at http://www.cms.hhs.gov/Man

uals/PBM/itemdetail.asp?filterT ype=none& filt

erByDID=99&sortByDID=1 &sortOrder=asce

nding& itemlI D=CMS021927&intNumPerPage

Robyn Stone, 7he Direct Care Worker: A Key

Dimension of Home Care Policy, 16:5 Home

Health Care Management & Practice 339

Fe cnccinsensincesinsininaniiiinsnnsennentinnnpeaniinenmmanes 9, 22-26

TABLE OF AUTHORITIES—Continued

Page .

Robyn |. Stone & Joshua M. Wiener, Who Will”

Care for Us? Addressing the Long-Term Care

Workforce Crisis (The Urban Institute &

American Ass’n of Homes and Servs. for the

Aging: Oct. 2001) (available at http://www.

rwjf.org/files/research/Who WillCareforUsRep

ST vsccicvesiseniesintiitiieianteitsinianiiidaptiaiiaiiaiipianiies 22

Nora Super, National Health Policy Forum

Background Paper, Who Will Be There to

Care? The Growing Gap between Caregiver

Supply and Demand 2 (Jan. 23, 2002) http://

www.nhpf.org/pdfs_bp/BP_ Caregivers _1-

iri iiliccisisthsialinsisnincindiniscitgiiibitestisinitienladadatianiinbiaiinahidni 23-25

Jane Tilly & Joshua M. Wiener, Coxsumer-

Directed Home Care and Community

Services: Policy Issues, Occasional Paper No.

44 (The Urban Institute: 2001) (available at

http://www.urban.org/publications/3 10065.ht

UCSF Center for California Health Workforce

Studies, An Aging U.S. Population and the

Health Care Workforce: Factors Affecting the

Need for Geriatric Care Workers (Feb. 2006)

(available at http://www.futurehealth.ucsf.edu/

geria/062404-Geria%20Final.pdf)....... 6, 12, 19, 23-24

U.S. Dep't Health and Human Servs. and U.S.

Dep’t of Labor, The Future Supply of Long-

Term Care Workers in Relation to the Aging

Baby Boom Generation (2003) http://www.

pascenter.org/publications/publication_home.p

UE tcisinicennnsainnemstinenipieninninaiel Sosertantine 23

TABLE OF AUTHORITIES—Continued

U.S. Dep’t of Health and Human Servs., Centers

for Medicare and Medicaid Services, National

Health Expenditures by Type of Service and

Source of Funds, CY 1960-2005 (www.

cms.hhs.gov/NationalHealthExpendData/down

SU cticenntnemnenisinievannneonbinntiitnian

Yoshiko Yamada, Profile of Home Care Aides,

Nursing Home Aides, and Hospital Aides:

Historical Changes and Data Recommenda-

Page

tions, 42:2 Gerontologist 199 (2002)............... 8-10, 25

IN THE

Supreme Court of the Anited States

No. 06-593

LONG ISLAND CARE AT HOME, LTD. AND

MARYANN OSBORNE,

Petitioners,

EVELYN COKE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE ALLIANCE FOR RETIRED

AMERICANS, AMERICAN ASSOCIATION OF

PEOPLE WITH DISABILITIES, AMERICAN

FEDERATION OF LABOR AND CONGRESS

OF INDUSTRIAL ORGANIZATIONS AND

CHANGE TO WIN AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

The Alliance for -Retired Americans (ARA), American

Association of People with Disabilities (AAPD), American

Federation of Labor and Congress of Industrial Organizations

(AFL-CIO), and Change to Win (CTW) file this brief amici

curiae in support of respondent with the consent of the parties

as provided for in the Rules of this Court. '

' No counsel for a party authored this brief amici curiae in whole or

in part. and no person or entity, other than the amici, made a monetary

contribution to the preparation or submission of this brief.

The ARA is an organization of three million retired work-

ers that advocates for the rights of older and retired persons.

The AAPD is a membership organization that represents the

interests of disabled Americans. Many members of the ARA

and the AAPD receive care from agency-employed home care

workers and each group has an interest in the salary and bene-

fits that agency workers receive, as these factors affect the

availability and quality of care. The AFL-CIO is a federation

of 54 national and international labor organizations with a

total membership of ten million working men and women.

CTW is an alliance of seven national and international labor

organizations with a total membership of six million working

men and women. Among the workers represented by AFL-

CIO and CTW affiliated unions are numerous home care and

home health aides.

SUMMARY OF ARGUMENT

Congress amended the Fair Labor Standards Act (FLSA) in

1974 to expand coverage to employees whose vocation is

domestic service, granting these workers the same protections

and employment standards that most other workers enjoy.

Agency-employed domestic service workers were generally

entitled to FLSA coverage prior to the 1974 amendments, and

thus the amendments primarily affected workers employed by

individual households. A narrow category of workers was

excluded from this expansion of coverage: workers employed

by individual households to provide babysitting or compan-

ionship services.

Agency-employed home care workers perform the type of

work that the 1974 Congress intended to cover under FLSA.

They are engaged in a full-time vocation and depend on their

wages to support their families. Their work is demanding and

difficult, in contrast to the occasional tasks Congress envi-

sioned for exempted companions. And they are employed by

agencies that can easily comply with FLSA requirements,

unlike the individual household employers that Congress

sought to protect through the companionship exemption.

Affirming the decision of the court below will not result in

dire consequences for elderly and disabled home care clients

or for the workers and agencies that serve them. Petitioners’

and amici’s claims that FLSA coverage of agency-employed

workers will decrease the quality or availability of home care

services are speculative and untrue. To the contrary, as

Congress recognized in 1974, providing coverage for these

workers will help increase and stabilize the labor supply,

which is currently insufficient to meet the rapidly growing

demand for home care services.

ARGUMENT

In 1974, Congress amended the Fair Labor Standards Act

(“FLSA”) to cover domestic service workers employed in

private households. 29 U.S.C. §§ 206(f) & 206(1). Prior to

the 1974 amendments, domestic service workers employed by

a third party employer were generally covered by the FLSA

but domestic service workers employed directly by a house-

hold were not. 29 U.S.C. § 203(s)(1). Pet. App. 30a. The

purpose of the 1974 amendments was to extend FLSA cover-

age to those domestic service workers who had previously

been excluded, principally those employed directly by the

household they served.

Congress excluded one group of domestic service workers

from the expanded FLSA coverage--those “employed in

domestic service employment” to provide either “baby-

sitting services” or “companionship services.” 29 U.S.C.

§ 213(a)(15). The “companionship exception” was intended

to reach only those domestic service workers employed

directly by the household they serve. That exception was not

intended to contract FLSA coverage by excluding domestic

service workers employed by third parties. The justification

for the “companionship exception” was that households

should not be burdened with FLSA compliance with respect

to a class of employees who were not likely to be pursuing

domestic service as their principal source of income. As we

now show, domestic service workers employed by third party

employers are not part of this class.

I. CONGRESS EXEMPTED A NARROW GROUP

OF INDIVIDUALS THAT DID NOT RELY ON

DOMESTIC EMPLOYMENT FOR ESSENTIAL

INCOME FROM THE 1974 FLSA EXTENSION

TO HOUSEFHOLD-EMPLOYED DOMESTIC

WORKERS.

The 1974 FLSA amendments were intended “to include

within the coverage of the Act al/ employees whose vocation

is domestic service.”? The expansion was premised on the

understanding ‘that many domestic service’ workers were

responsible for the economic support of their families,’ and

that the wage they earned without FLSA coverage was

inadequate to lift them out of poverty.* The one group that

Congress did not consider to fall into this category was indi-

viduals employed directly by households to provide baby-

sitting and companionship services. Thus, in discussing the

“companionship exception,” the Senate and House Commit-

tee reports explained that “|pJeople who will be employed in

*'§. Rep. No. 93-690, at 20 (1974) (emphasis added).

> See. e.g., 120 Cong. Rec. 5276 (1974) (Representative Williams)

(citing statistic that 200,000 female domestic workers were heads of

families); 119 Cong. Rec. 18,347 (1973) (Representative Green).

* See, e.g., 119 Cong. Rec. 24,827 (1973) (Senator Humphrey) (com-

menting that average wage of household workers was “not an adequate

income for one person. But a large portion of these women are heads

of households.”); 119 Cong. Rec. 18,347 (1973) (Representative Green)

(pointing out that two-thirds of domestic workers had dependent children,

and that over half of these workers lived in poverty).

the excluded categories are not regular bread-winners or

responsible for their families’ support.”*

In this regard, Senator Williams, Chair of the Labor

Subcommittee, explained what was meant by the word

“companion”:

We use the situation in which people are in a household

not to do household work but are there, first, as baby-

sitters. I think we all have the full meaning in mind of

what a babysitter is there for—to watch the youngsters.

“Companion,” as we mean it, is in the same role—to be

there and to watch an older person, in a sense.°

And, when another senator interjected, “In other words, an

elder sitter,” Senator Williams replied, “Exactly.”’

Similarly, Senator Burdick observed that, unlike “the pro-

fessional.domestic who does this as a daily living,” many

individuals hire a “neighbor [who] comes in and sits with” an

elderly parent.* While he acknowledged that babysitting and

companionship services, “of course, entail[] some work,” he

characterized it as “perhaps making lunch for the children or

making lunch for the infirm person, and may[be] even... .

throwing some diapers in the automatic washing machine for

the baby.”

*§. Rep. No. 93-690, at 20 (1974). See also H.R. Rep. No. 93-913, at

36 (1974) (Congress did not expect employees in those excluded

categories to be “regular bread-winners or responsible for their families

support”); S. Rep. No. 93-358, at 27 (1973) (same).

” 119 Cong. Rec. 24,801 (1973).

* 119 Cong. Rec. 24,801 (1973). See also 119 Cong. Rec. 24,797 (1973)

(Senator Dominick reads letter from woman who explains she hires

companion for her elderly mother; according to letter, companion spends

time “watching TV, reading, relaxing, visiting with my mother, using

[the] telephone, [and] eating”).

” 119 Cong. Rec. 24,801 (1973).

In short, Congress meant to extend FLSA coverage to do-

mestic service workers who relied on their employment as an

essential source of income, and to exclude only those indi-

viduals engaged by a single household to watch over children

or keep an elderly or disabled person company. This narrow

exemption was never meant to cover the hundreds of thou-

sands of home care workers who make domestic service their

vocation.

Il. HOME CARE WORKERS EMPLOYED BY

AGENCIES ARE THE TYPE OF DOMESTIC

WORKERS CONGRESS INTENDED TO

COVER UNDER FLSA.

Home care agencies employ approximately 70%, or hun-

dreds of thousands, of home care workers.'° The agencies

create full-time jobs by assigning home care workers to

multiple households, allowing the agencies to dominate the

labor market for home care services. There are more than

23,000 home care agencies in the United States.'’ For-profit

agencies have assumed an increasingly dominant role in the

home care industry, with a share of the market rising above

'°UCSF Center for California Health Workforce Studies, An Aging

U.S. Population and the Health Care Workforce: Factors Affecting the

Need for Geriatric Care Workers 30 (Feb. 2006) (available at http://www.

futurehealth.ucsf.edu/geria/062404-Genao20F inal.pdf) [hereinafter UCSF

Health Workforce Studies].

'' National Center for Health Workforce Analyses et al., Nursing

Aides, Home Health Aides, and Related Health Care Occupations

National and Local Workforce Shortages and Associated Data Needs viii,

12 (U.S. Dep’t He=e »e ‘oman Servs.: 2004) (available at ftp://ftp.

hrsa.gov/bhpr/nati’ » cr » andHomeAides.pdf) [hereinafter Nat’|

Ctr. for Health Workfuice “ ralyses]. See also Application of the Fair

Labor Standards Act to Domestic Service, 66 Fed. Reg. 5481, 5487

(2001) (to be codified at 29 C.F.R. pt. 552) (proposed Jan. 19, 2001)

{hereinafter Application of the FLSA to Domestic Service]. Between

1975 and 1999 the number of Medicare-certified home care agencies

increased three-fold. /d. 66 Fed. Reg. at 5483.

40% in the mid-1990s.'* As of 1999, for-profit companies

employed 62% of home health care aides.'?

The workers employed by these agencies perform demand-

ing personal, housekeeping and medical services for multiple

households. Domestic service is their vocation and it pro-

vides them with essential family income. Agency-employed

home care workers are not within the narrow class that

Congress intended to exclude from the 1974 extension of

FLSA coverage.

A. Agency home care work is a bread-winning

vocation.

Domestic service is the primary vocation of the workers

employed by home care agencies. Agency employees typi-

cally serve multiple households and do not know their clients

before being assigned to them.'* On average. each agency

employee provides home care services to five or more house-

'? See Nat’! Ctr. for Health Workforce Analyses, supra note 11, at 12

(for-profit ownership of home care agencies increased from 6 % in 1980 to

43% in 1995); Application of the FLSA to Domestic Service, supra note

11, 66 Fed. Reg. at 5483 (unaffiliated for-profit agencies had over 40%

share of market by 2000).

'* Rhonda J. V. Montgomery et al., A Profile of Home Care Workers

from the 2000 Census: How It Changes What We Know, 45:5 Gerentolo-

gist 593, 596 (2005).

' Bureau of Labor Statistics (“BLS”), U.S. Department of Labor,

Occupational Outlook Handbook 2006-2007 (available at http://www.bls.

gov/oco/home.htm) (Personal and Home Care Aides) (most home care

workers work with multiple clients, often visiting four to five on the same

day); Jane Tilly & Joshua M. Wiener, Consumer-Directed Home Care

and Community Services: Policy Issues, Occasional Paper No. 44, at 11-

12 (The Urban Institute: 2001) (available at http://www.urban.org/

publications/310065.html) (only 7% of California agency home care

workers knew their client before they began providing services, as com-

pared to three-quarters of individual providers).

holds in an eight-hour work day.'* This stands in marked

contrast to the ad hoc single-household employment that

Congress intended to exclude from the 1974 expansion of

FLSA coverage, through which companions typically sat with

a single relative or friend.'®

Home care work is generally full-time or close to it. Thus,

in 1999, home care employees worked an average of 29-32

hours per week, not including time spent traveling between

clients.'’ Travel time can be substantial given that home care

workers “often visit four or five clients on the same day,” and

they “may spend a good portion of the working day traveling

from one client to another.”'®

'° National Association for Home Care and Hospice, Basic Statistics

about Home Care, Table 15 (2001) (available at http://www.nahc.org/

consumer/hcstats.html); National Association for Home Care and

Hospice, Basic Statistics about Home Care, Table 14 (2004) (available at

hitp://www.nahc.org/04HC stats.pdf).

'© Studies of California home care workers who are employed by

individual households rather than agencies show that close to two-thirds

of household-employed individuals are related to the recipient of home

care services and three-quarters knew the recipient before they began

providing services. Michael R. Cousineau, Providing Health Insurance to

HSS Providers (Home Care Workers) in Los Angeles County: Report to

the California HealthCare Foundation 1\ (2000) (available at http://

www.chcf.org/documents/insurance/ihss.pdf); Candace Howes, Upgrad-

ing California's Home Care Workforce: The Impact of Political Action

and Unionization 94 (Univ. of Cal. Institute for Labor and Employment:

2004) (available at http://repositories.cdlib.org/ile/scl2004/03/); Tilly &

Wierier, supra note 14, at 11-12.

'" Application of the FLSA to Domestic Service, supra note 11, 66

Fed. Reg. at 5483 (citing BLS National Current Employment Statistics).

Some researchers report higher averages: See, e.g., Yoshiko Yamada,

Profile of Home Care Aides, Nursing Home Aides, and Hospital Aides:

Historical Changes and Data Recommendations, 42:2 Gerontologist 199,

202 (2002) (reporting 34 hours usually worked per week).

'® Bureau of Labor Statistics, supra note 14 (Personal and Home Care

Aides). See also id. (Nursing, Psychiatric and Home Health Aides).

Even without counting travel time, a majority of home care

aides work more than 35 hours per week.'? Recent studies

establish that 34-46% ot home care workers work full-time

year-round, and an additional 12-19% work full-time for part

of the year.° The Department of Labor itself found that

“{cjurrent data suggest that many workers in the home care

industry are now employed in their primary occupation.””' In

contrast, most household-employed home care workers work

for a single client,’? and work less than half-time.”°

Home care workers are two to three times more likely than

other workers to be single. heads of households.** Forty

' H. Stephen Kaye et al., The Personal Assistance Workforce: Trends

in Supply and Demand, 25:4 Health Affairs 1113, 1118 (2006).

*° Montgomery et al., supra note 13, at 595, 597; Yamada, supra note

17, at 202.

*! Application of the FLSA to Domestic Service, supra note 11, 66

Fed. Reg. at 5483. The trend of increased agency employment has been

accompanied by an increase in these full-time numbers. See Robyn Stone,

The Direct Care Worker: A Key Dimension of Home Care Policy, 16:5

Home Health Care Management & Practice 339, 340 (2004) (citing statis-

tics that percentage of full-time home care workers rose from 29% to 46%

in decade between late 1980s and late 1990s).

2? Household-employed individuals in California serve an average of

1.4 clients while agency workers average 4 clients. Tilly & Wiener, supra

note 14, at 12-13.

* A study of Los Angeles home care workers employed directly by

households determined that approximately one-third worked less than 10

hours average per week and another one-third less than 20. Cousineau,

supra note 16, at 11. Another study found an average of less than 25

hours per week among household-employed home care workers in Los

Angeles and San Francisco counties. Howes, supra note 16, at 94.

** William J. Scanlon (Director, Health Care Issues, General Account-

ing Office), Nursing Workforce, Recruitment and Retention of Nurses and

Nurse Aides Is a Growing Concern: Testimony before the Senate

Committee on Health, Education, Labor and Pensions, GAO-0\-750T, at

22 (released May 17, 2001) (available at http://www.gao.gov/new.items/

d01750t.pdf).

percent have children younger than 18.°° The inadequacy of

the wages they earn, see infra p. 25, means that the families

they support often live below the poverty level and rely on

public benefits programs for support.”°

B. Agency home care work involves the type of

domestic work that Congress intended to cover.

The work performed by agency home care workers is the

type of work Congress intended the FLSA to cover. Agency-

employed home care workers provide care and assistance to

seriously disabled individuals. The level of services required

by such individuals means that keeping clients company

represents a negligible portion of the services provided by

agency-employed home care workers. As the Department of

Labor has acknowledged, “[t]hese workers perform a variety

of housekeeping, personal care, and medical duties for

individuals who need assistance with activities of daily living

to enable them to remain in their homes.””’

The work is very demanding. “[I]}ndividuals treated as

exempt in providing companionship services may now

perform duties such as medication management, taking vital

signs (pulse, temperature, respiration), routine skin and back

care, and assistance with exercise and the performance of

simple procedures as an extension of physical therapy ser-

** Yamada, supra note 17, at 200-01.

° One in five home health care aides has income below the poverty

level. Scanlon, supra note 24, at 13; Yamada, supra note 17, at 202-03.

35-40% of families headed by home health care and nursing home aides

are in poverty, and 30-35% receive food stamps. Scanlon, supra note 24,

at 22. Home health care aides are twice as likely as other workers to be

receiving food stamps and Medicaid and to lack health insurance. /d. at

13.

”” Application of the FLSA to Domestic Service, supra note 11, 66

Fed. Reg. at 5483. See also id. at 5484 (home care workers who perform

medical duties “are not acting simply as elder sitters or as babysitters

watching over their charge’’).

vice.”* They may also have responsibility to “keep patients’

rooms neat; and help patients to move from bed, bathe, dress,

and groom,” and “[olccasionally, they change nonsterile

dressings, give massages and alcohol subs, or assist with

braces and artificial limbs. Experienced home health aides

also may assist with medical equipment such as ventilators,

which help patients breathe.””°

While home care aides have fewer health care-related

responsibilities than do home health aides, their housekeeping

and personal care responsibilities are still demanding, requir-

ing them to “clean clients’ houses, do laundry, and change

bed linens|,] . . . plan meals (including special diets), shop for

food, and cook[,]... help clients get out of bed, bathe, dress,

and groom{,} . . . [and] accompany clients to doctors’

appointments or on other errands.’ Duties also typically

include assistance with “toileting, bathing, eating, and trans-

ferring” their clients.”'

** Application ofthe FLSA to Domestic Service, supra note 11, 66

Fed. Reg. at 5484.

? Bureau of Labor Statistics, supra note 14 (Nursing, Psychiatric and

Home Health Aides: Personal and Home Care Aides). A federal govern-

ment report gave the following estimates regarding the percentage of

home health care clients requiring assistance with various activities:

bathing or showering, 53%; dressing, 46%; transferring to or from a bed

or chair, 30%; and toileting, 23%. Wan He et al., 65+ in the United

States: 2005, at 67 (U.S. Dep’t Health & Human Servs. & U.S. Census

Bureau: Dec. 2005) (available at http://www.census.gov/prod/2006pubs/

p23-209.pdf).

*° Bureau of Labor Statistics, supra note 14 (Personal and Home Care

Aides).

*' Paraprofessional Healthcare Institute, The Right People for the Job,

1:1 Workforce Tools 1, 2 (Fall 2002) (available at http://www.para

professional.org/publications/WorkforceTools_VollNo!.pdf) (description

of work developed under subcontract to MEDSTAT Group, Inc. under

contract with federal government's Centers for Medicare & Medicaid

Services). See also State Medicaid Manual, CMS Pub. 45 § 4480

The nature of the work takes a toll on the employees.

Home health providers have 280.5 occupational injuries and

illnesses involving days away from work per 10,000 full-time

workers as compared to 188.3 for all private industries.°*

The injury rate in home care is worsened by the fact that,

unlike in a nursing home, home care aides must lift and

transfer clients without the help of a mechanical lifting device

or the assistance of co-workers.’ Home care workers often

suffer emotiona! abuse from mentally impaired clients who

may have severe behavioral problems.°* Homes may be

“untidy and depressing,” and clients may be “angry, abusive,

depressed, or otherwise difficult.”**

C. Congress intended the exemption to apply to

individual households, not to agency employers.

The legislative history of the 1974 amendments shows that

Congress was concerned about the increased demands that

FLSA compliance would place upon individual households.

Opponents of the extension complained about “bring[ing] the

Federal bureaucracy into the kitchen of the American house-

(available at http://www.cms.bhs.gov/Manuals/PBM/itemdetail.asp? filter

Type=none& filterBy DID-99&sonByDID= |! &sortOrder=ascending& item

ID=CMS021927&intNumPerPage=10) (“Personal care services” include

assisting disabled individuals with “eating, bathing, dressing, toileting,

transferring, and maintaining continence,” as well as “personal hygiene,

light housework, laundry, meal preparation, transportation, grocery shop-

ping, using the telephone, medication management, and money manage-

ment.”).

* Nat’i Ctr. for Health Workforce Analyses, supra note 11, at 10, 109.

** Bureau of Labor Statistics, supra note 14 (Nursing, Psychiatric and

Home Health Aides; Personal and Home Care Aides).

** UCSF Health Workforce Studies, supra note 10, at 33.

** Bureau of Labor Statistics, supra note 14 (Personal and Home Care

Aides). See also id. (Nursing, Psychiatric and Home Health Aides); Jane

Gross, New Options (and Risks) in Home Care for Elderly, N.Y. Times,

Mar. |, 2007.

wife,” and cited Secretary of Labor Peter Brennan’s predic-

tion that “homemakers” would be unable to keep accurate

records.”®

Unlike individual households, however, agencies are tradi-

tional employers, with up to hundreds of thousands of home

care employees serving clients in multiple locations.?’ Agen-

cies routinely maintain employment records and comply with

a multitude of labor and employment laws. The exemption

Congress adopted was based on a concern about the burdens

of such requirements, and that concern is simply inapplicable

to agency employers.

Federal employment laws frequently distinguish house-

holds from other employers. The Social Security Act, for

example, does not permit agencies to take advantage of

special provisions that exempt household-employed domestic

workers, exclude non-cash remuneration from wages, and

permit household employers to round the amount of wages.

*° S$. Rep. No. 93-300, at 121 (1973) (Minority Views). See also H.R.

Rep. No. 93-232, at 95 (1973) (Minority Views) (questioning wisdom of

subjecting housewives to criminal penalties for failing to keep required

records); 119 Cong. Rec. 18,155 (1973) (Representative Erlenborn) (com-

plaining about imposition of record-keeping requirements upon house-

wives who employ workers for less than a day per week); id. (Senator

Fannin) (“] just cannot imagine the housewife struggling with the paper

work which would be required.”); id. at 24,385 (Senator Beall) (arguing

that expecting housewives to keep FLSA records is unrealistic); id at

24,798 (Senator Dominick) (questioning why government should require

private individuals to maintain records).

*” See Gross, supra note 35; Gentiva At a Glance, http://www.gentiva.

com/about/AtAGlance.asp; About TLC Health Care Services, http://www.

ticathome.com/AboutUs/tabid/52/Default.aspx; Press Release: The Ac-

credited Family of Home Care Services celebrates 25 vears of excellence

(Apr. 14, 2005) (available at http://www.accreditednursing.com/pdf/Press

%20Release%o20E%20F ormat.pdf; Addus HealthCare Services: Company

Profile, http://www.addus.com; Our History and Services, http://www.

interimhealthcare.com/abouvstaffingstory aspx.

See Respondent’s Br. at 19-20.°* Similarly, the National

Labor Relations Act’s exclusion of persons employed “in

the domestic service of any family or person at his home”

from its definition of “employee,” 29 U.S.C. § 152(3), does

not apply to domestic workers employed by agencies. See

Ankh Services, Inc., 243 NLRB 478, 480 (1979). And the

regulation exempting certain employers of domestic workers

from the Occupational Safety and Health Act applies only to

“individuals who, in their Own residences, privately employ

persons” who perform certain domestic tasks. 29 C.F.R.

§ 1975.6. Limiting the companionship exemption to employ-

ees of households is consistent with this pattern of federal

employment regulation.

Il. AFFIRMING THE SECOND CIRCUIT’S DECI-

SION WILL NOT PRODUCE THE DIRE CON-

SEQUENCES PREDICTED BY PETITIONERS

AND AMICI.

Petitioners and amici warn that FLSA coverage of agency-

employed home care workers will result in increased costs

and require agencies to reduce aides’ overtime hours, thus

disrupting continuity of care and reducing the services avail-

able to clients. Those claims are unfounded and resemble

arguments that were unsuccessfully advanced in opposition to

the 1974 FLSA amendments.

The actual experience in numerous states where laws

already require third-party employers of home care workers

to pay a minimum wage (in some cases, higher than the

** Even before the Social Security Act was amended in 1950 to remove

the exemption of domestic workers and to add these provisions, the ex-

emption was construed to apply only to domestics employed by

households. See 26 C.F.R. § 403.809 (1949) (“Services of a household

nature performed by an employee in or about the private home of the

person by whom he is employed, . . . are included within the above

exception.” ).

federal minimum) and premium pay for overtime belies the

unsupported predictions of doom. Many state minimum

wage and overtime laws have no companionship exemption at

all,” or exempt only live-in companions.*° Others exempt

companions only if they are employed directly by a house-

hold or family member.*! Neither Petitioners nor amici offer

® See, e.g., 820 Ill. Comp. Stat. 105/3(d), 105/4(a)(1), 105/4a and IU.

Admin. Code tit. 56, § 210.110 (exempting individuals employed in

domestic service but defining category to exclude “person whose primary

duty is to be a companion for individual(s) who are aged or infirm”); Kan.

Stat. Ann. §§ 44-1202(e)(2), 44-1203, 44-1204 and Kan. Admin. Regs. §

49-30-1(h) (exempting employees providing domestic service, defined to

include “an individual employed by an owner or tenant in a private home

to clean, repair or maintain the private home or the property on which the

private home is located, but does not include an individual employed by a

person contracting to perform the service”); Minn. Stat. §§ 177.23(11),

177.24, 177.25 (providing only that “nighttime” hours worked by

employee providing “companionship services” are not hours worked if the

employee is merely available to perform duties but does not actually do

so). See also Md. Code Ann., Lab. & Empl. §§ 3-413, 3-415 (minimum

wage and overtime law with no relevant exceptions); N.J. Stat. Ann.

§ 34:11-S6a4 (same); W. Va. Code §§ 21-SC-1 ef seg. (same); Mass. Gen.

Laws ch. 151, §§ 1-3 (same) and Opinion Letter MW-2002-020, Mass.

Dept. of Labor, Div. of Occupational Safety (July 19, 2002), available at

www.mass.gov/dos/mw_ docs/mw-2002-020.htm (stating that home health

aides covered); Neb. Rev. Stat. § 48-1201 et seg. (minimum wage laws

with no relevant exceptions); S.D. Codified Laws § 60-11-3 (same).

*° See, e.g.. Mich. Comp. Laws §§ 408.383, 408.384, 408.394(2)(a)

(covering all employees providing companionship services except “live-in

domestic service employee”); Nev. Rev. Stat. §§ 608.018, 608.250 (ex-

empting only domestic servants that “reside in the household where they

work”).

*' See, e.g., Alaska Stat. §§ 23.10.055(4), 23.10.060, 23.10.065 and

Alaska Admin. Code tit. 8, § 15.910(a)(6) (exempting persons “employed

in or about a private home of a person by whom the individual is

employed”); 7 Colo. Code Regs. § 1103-1(1) to -1(6) (exempting “com-

panions, casual babysitters, and domestic employees employed by house-

holds or family members to perform duties in private residences”): Haw.

Rev. Stat. § 387-1 to -3 (exempting individuals employed “in domestic

any evidence that such state laws have resulted in financial

ruin to agencies or the disruption of continuous care to

severely disabled individuals.

Opponents of the 1974 amendments warned that the exten-

sion of coverage to domestic workers would make their labor

too costly and reduce the demand for their services.” But the

1974 Congress rejected these admonitions in favor of pro-

viding domestic workers with the same protections and

minimum standards that applied to other workers.

As we now show, Petitioners’ and amici’s claims about the

consequences of coverage are unsupported, and it is in fact

service in or about the home of the individual’s employer”); Mont. Code

Ann. §§ 39-3-404, 39-3-405, 39-3-406 (exempting employees providing

companionship services only “when the person providing the service is

employed directly by a family member or an individual who is a legal

guardian”); 43 Pa. Cons. Stat. §§ 333.104, 333.105(a)(2) and 34 Pa. Code

§ 231.1(b) (exempting “domestic service in or about the private home

of the employer,” ana defining such service not to include work for an

“employer in the employer’s pursuit of a trade, occupation, profess-

sion, enterprise or vocation”); Wash. Rev. Code §§ 49.46.010(5)(b),

49.46.010(5)(j), 49.46.020, 49.46.130 (exempting “[a]ny individual em-

ployed in casual labor in or about a private home, unless performed in the

course of the employer’s trade, business, or profession” and “[a]ny indi-

vidual whose duties require that he or she reside or sleep at the place of —

his or her employment”); Wis. Admin. Code DWD §§ 272.03, 272.06,

247.015, 274.03 (exempting from minimum wage only “casual employ-

ment in or around a home in work usual to the home of the employer, and

not in connection with or part of the business, trade or profession of the

employer” for not more than 15 hours per week, and “companions in

private homes,” defined as “[pJersons who reside in the employer's house-

hold for the purpose of companionship and who spend less than 15 hours

per week on general household work”; and exempting from the overtime

law only “[e]mployees employed in domestic service in a household by a

household”).

*° See, e.g. S. Rep. No. 93-300, at 121 (1973) (Minority Views) (quot-

ing Secretary of Labor Peter Brennan's concern that “the housewife can

substitute her labor” for a domestic employee's).

the continued undervaluing of home care aides’ work—and

the resulting labor shortage—-that presents the gyeatest

concern to society.

A. Predictions that FLSA coverage will harm the

quality and availability of care are speculative

and untrue.

The predictions of harm by Petitioners and their supporting

amici rest largely upon unsupported conjecture, not the

realities of the current home care market. And the purported

concern about the affordability of home care services is

unconvincing coming from agencies that earn profits and pay

home care workers significantly less than the amount they

receive from the government to provide such services. A

recent study by UCSF researchers found that agency

reimbursement rates under federal Medicaid programs

exceeded those for household-employed home care workers

by an average of 27-39% ($13 per hour as compared to $8-9

per hour).** Nonetheless, home care employees of agencies

“ultimately earned an hourly wage a little over the Federal

minimum wage” and “[h]lealth care and other benefits were

generally not provided.”** Thus, these agencies are in a

better position than households to absorb additional costs

without reducing services or passing on costs to consumers or

the government.

Two additional factors undermine assertions that overtime

costs will burden agencies and force home care agencies to

assign multiple workers to large numbers of clients. First,

clients generally receive less than 40 hours of service per

week. Most applicable state Medicaid programs place limits

on the number of hours that they will fund, with the limit

* Allen J. LeBlanc et al., State Medicaid Programs Offering Personal

Care Services, 22:4 Health Care Financing Rev. 155, 165 (2001).

* LeBlanc et al., supra note 43, at 165.

averaging 4.8 hours per day.*° Those states that have not

adopted hourly limits tend to impose cost caps upon clients

which indirectly limit the hours of service.*® Petitioners and

amici have not offered any evideace that, despite these limits,

substantial numbers of clients in jurisdictions other than New

York receive more than forty hours of services per week.

Second, to the extent agency-employed home care aides are

working more than 40 hours per week, evidence suggests it is

in order to serve multiple clients, not a single individual.*’

Thus, the number of clients requiring round-the-clock care is

unlikely to be large enough to support the predictions of

financial disaster.**

Finally, government sources pay three-quarters of all home

health care spending,*’ and provide extensive funding for

*° LeBlanc et al., supra note 43, at 162. Of the fifteen states with

service limits, seven do not permit the limits to be exceeded and eight

allow exceptions with prior authorization. See General Accounting

Office, Adults with Severe Disabilities: Federal and State Approaches for

Personal Care and Other Services, GAO/HEHS-99-101, at 23, 75-76

(May 1999).

“° LeBlanc et al., supra note 43, at 162.

*’ National Association for Home Care and Hospice, Basic Statistics

about Home Care, Table 15 (2001) (available at http://www.nahc.org/

consumer/hcstats.htm])(agency employees in the 25th percentile of visits

per eight-hour day served 4.2 clients daily.)

** In any event, there is a separate overtime exemption that covers live-

in aides. 29 U.S.C. §213(b)(21).

*° U.S. Dep’t of Health and Human Servs., Centers for Medicare and

Medicaid Services, National Health Expenditures by Type of Service

and Source of Funds, CY 1960-2005 (2005 figures can be found at

www.cms.hhs.gov/NationalHealthExpendData/downloads/nhe2005.zip);

The Caregiving Protect, Caregiving in America 34 (Schmieding Foun-

dation) (available ai http://www.schmiedingcenter.org/pdf/caregiving_in_

america.pdf) (citing Cynthia Smith et al., National Health Spending in

2004, 25:1 Health Affairs 186-96 (2006)). That figure is for home health

-care only, and does not include personal care services. The remainder

of the funding comes from the following sources: 12% private health

approved personal assistance in the activities of daily living

for elderly and disabled individuals.°° Thus, governments

can avoid or mitigate any negative ramifications of FLSA

coverage by adjusting reimbursement rates to enable pro-

viders to comply with the FLSA."

insurance, 11.3% out-of-pocket, and 2.3% other private. The Caregiving

Project, supra, at 34.

found that Medicare and Medicaid contribute 55% of the money paid to

freestanding agencies, philanthropy accounts for 12%, private health

insurance 11%, and out-of-pocket funds just 22%. Application of the

FLSA to Domestic Service, supra note 11, 66 Fed. Reg. at 5483. Other

federal programs that fund home care include Title XX Social Security

block grants; Title II] Older American Act funds; the Department of

Veterans Affairs Aid and Attendance Program; and Title II, Section 203

of the Ticket to Work and Work Incentives Improvement Act of 1999.

LeBlanc et al., supra note 43, at 156. State and local governments also

contribute substantially and are increasingly turning to alternative, nonh-

Medicaid sources of funding for in-home care. UCSF Health Workforce

Studies, supra note 10, at 57.

*! 42 U.S.C. § 1396a(a)(30)(A) requires state Medicaid plans to “pro-

vide such methods and procedures relating to the utilization of, and the

payment for, care and services available under the plan . . . as may be

necessary . . . to assure that payments are consistent with efficiency,

economy, and quality of care and are sufficient to enlist enough providers

so that care and services are available under the plan at least to the extent

that such care and services are available to the general population in the

geographic area.” Accordingly, New York, for example, makes the

minimum wage a factor to be considered in setting personal care services

reimbursement rates, and permits providers to request revisions of

their rates for new or unanticipated costs beyond their control. N.Y.

Comp. Codes R. & Regs. tit. 18, § 505.14(h)(6)(iiKd>: id, tit. 18,

§ 505.14(h)(7)(iiic (2). In addition, increased compensation costs due to

FLSA coverage could be addressed through wage pass-through legisla-

tion, a strategy employed by a.number of States already. See Dorie Sea-

vey & Vera Salter, Paying for Quality Care: State and Local Strategies

for Improving Wages and Benefits for Personal Care Assistants 7-8

(American Ass’n of Retired Persons: 2006) (available at http://assets.

aarp.org/rgcenter/il/2006 18 care.pdf).

B. FLSA coverage will help increase and stabilize

the labor supply to meet the growing demand

for home care services.

Congress extended the FLSA to domestic employment in

the belief that improving labor standards would attract more

workers to the occupation. Thus, Senate Committee Report

No. 93-300 explained:

It is also important to note that even in a period of high

unemployment such as exists today, the demand for

household workers is not being met. Bringing domestics

under the Fair Labor Standards Act would not only

assure them a minimum wage but would enhance their

status in the community. It is expected that the supply of

domestic workers will increase as their pay and working

conditions improve. Minimum wages should serve to

attract skilled workers to these jobs at a time when the

need for skilled domestic employees is greatly increas-

ing.

Congressional supporters of the extension of coverage en-

dorsed this rationale. Senator Williams noted that, “[d]uring

the past 13 years, the number of domestic service employees

in the country has been reduced by half at a time when

the demand for domestic services rose by 33 percent,” and

warned, “[i]f these trends continue, a much-demanded occu-

pation will have been reduced to near oblivion.”°* Other

lawmakers highlighted the relationship between extending

2S. Rep. No. 93-300, at 21 (1973). See also S. Rep. No. 93-690, at 19

(1974) (same); 119 Cong. Rec. 24,360 (1973) (“{I]n many areas of the

country, including New York, . . . there are not enough workers willing to

engage in domestic employment to meet the demand. Bringing minimum

wage coverage to domestics will be one step, and a very important step, to

bringing some measure of dignity to this type of employment and thus

serve to attract a more qualified and more stable workforce to the job.”’).

** 119 Cong. Rec. 24,799 (1973).

FLSA coverage and restoring the labor pool.°* Senator Javits

stated, “The more the job becomes dignified and recognized

* See, e.g. 119 Cong. Rec. 24,802 (1973) (Senator Javits) “[N]o

wonder we have a pool of people who do not want the jobs; they are not

paid adequately. The argument is strong for this kind of measure in the

elementary sense of restoring the pool of labor for the work. . . . | believe

we will have more and better domestic workers with this kind of policy

than otherwise.”); 119 Cong. Rec. 24,828 (1973) (Senator Humphrey)

(“[I]n the last decade, over 70,000 persons have left domestic work,

precisely because the pay is so low. .. . [W]e are not going to increase the

number of domestic workers, unless and until the domestic can be assured

some kind of fair compensation for her work.”); 119 Cong. Rec. 18,347

(1973) (R .esentative Green) (“This is a group whose numbers are

shrinking drastically as demand for workers is increasing. . . . [W]e talk

about it being difficult to get domestic workers. Until we are willing and

able to pay a living wage, until we the Congress, are willing to bring them

under the minimum wage, the problem will remain.”); 119 Cong. Rec.

30,270 (1973) (Representative Jordan) (“Employment in the field of

domestic work has been declining for some time, largely because of the

poor wages and the lack of advancement. Applying minimum wage cov-

erage to domestic workers would give some semblaiice of dignity to this

menial labor.”); 119 Cong. Rec. 30,281 (1973) (Representative Metcalfe)

(“The demand for domestic workers is increasing at a time when there is a

shortage of such workers. Although competent domestic help is in high

demand the pay continues to be grossly inadequate.”); 119 Cong. Rec.

30,271 (1973) (Representative Mitchell) (citing drop in supply of domes-

tic workers by one million in past decade and attributing same to

inadequate wage); 119 Cong. Rec. 18,380 (1973) (Representative Mink)

(noting “the number of domestics employed in households across the

United States declined by 70,000 between 1960 and 1970” and attributing

that drop to low pay in the industry; “By increasing the pay, we should

make these positions more attractive and add new employment opportuni-

ties.”); 120 Cong. Rec. 5270 (1974) (Representative Williams) (“In a little

over 10 years the work force employed in domestic service has been cut in

half during a period when the demand and needed for domestic workers

has increased by one-third. Part of that, | am sure, is the fact of the low

wages that do prevail and the lack of coverage. . . . [I]f the employment is

given the dignity it deserves, by coverage under the Fair Labor Standards

Act, maybe those working women and those who need help in their homes

will have an adequate supply of those who need the work and want the

as honorable employment, such as any other employment—

working in a factory or working here—the better it will be

from the point of view of getting that kind of service, which

Americans so urgently need.”*°

Similarly, today, groups representing elderly and disabled

individuals have filed amicus briefs supporting FLSA cover-

age of agency home care workers in order to stabilize and

strengthen the labor pool that delivers critical. services to

elderly and disabled individuals. This support makes sense in

light of the well-documented shortage of home care workers

throughout the United States.*°

Demographic changes, including longer life expectancy,

will intensify this labor shortage in the coming decades.

Individuals aged 65 years and older will increase from 12%

work but cannot afford to go to work when the wages are as low as they

are today.”).

*° 118 Cong. Rec. 24,705 (1972).

at 1-2; Susan Harmuth & Susan Dyson, Results of the 2005 National

Survey of State Initiatives on the Long-Term Care Direct-Care Workforce

6 (Nat'l Clearinghouse on the Direct Care Workforce & Direct Care

Workers Ass’n of N.C.: 2005) (reporting that 29 states considered long-

term direct care vacancies to be a “serious” workforce issue) (available at

http://www.directcareclearinghouse.org/download/2005 Nat Survey_Stat

e_Initiatives.pdf); LeBlanc et al., supra note 43, at 167 (reporting that

state officials in 61% of states “reported difficulties finding qualified per-

sonal care providers”); Scanlon, supra note 24, at 11; Stone, supra note 21

at 339, 344 (reporting that 37 states considered recruitment and retention

of home care aides to be priority concerns); Robyn I. Stone & Joshua M.

Wiener, Who Will Care for Us? Addressing the Long-Term Care Work-

force Crisis 3-4, 9, 12-16 (The Urban Institute & American Ass'n of

Homes and Servs. for the Aging: Oct. 2001) (available at http://www.rwif.

org/files’ research/WhoWillCareforUsReport.pdf).

of the population today to 21% by 2050,°’ and those who are

85 and older will double by 2030 and triple or quadruple by

2040.°* These trends will produce significant increases in the

demand for home care services, with the number of elderly

individuals in need of personal assistance services projected

to rise from 13 million in 2000 to 27 million by 2050, and

working-age individuals in need of assistance due to disabil-

ity predicted to increase from 5 million to 8 million during

the same time period.””

As a result, employment of home health aides is projected

to increase by 56% just in the decade between 2004 and 2014,

making it the fastest growing occupation in the nation:

employment of personal and home care aides is expected to

grow by 41% during the same time period, making it tenth on

that list.°° As of 2004, federal statistics documented 701,000

personal home care aides and 624,000 home health care

aides.°’ By 2014, the Bureau of Labor Statistics projects a

** UCSF Health Workforce Studies, supra note 10, at 13 (citing Con-

gressional Budget Office, The Looming Budgetary Impact of Society's

Aging (2002)).

** Nora Super, National Health Policy Forum Background Paper, Who

Will Be There to Care? The Growing Gap between Caregiver Supply and

Demand 2 (Jan. 23, 2002) (available at http://www.ohpf.org/pdfs_bp/

BP_ Caregivers 1-02.pdf) (2040 projections); Scanlon, supra note 24, at 9

(2030 projections).

* Kaye, supra note 19, at 1113 (elderly estimates); U.S. Dep’t Health

and Human Servs and U.S. Dep't of Labor, The Future Supply of Long-

Term Care Workers in Relation to the Aging Baby Boom Generation 5

(2003) (available at http://www.pascenter.org/publications/publication

home.php?id=6! ) (working-age disabled individuals).

E. Hecker, Occupational Employment Projects to 2014, Monthly Labor

Rev., Nov. 2005, at 75 (citing BLS statistics).

*' Bureau of Labor Statistics, supra note 14 (Nursing, Psychiatric and

Home Health Aides; Personal and Home Care Aides); Hecker, supra note

60, at 75 (citing BLS statistics). These statistics may underestimate the

need for 974,000 home health aides and 988,000 personal and

-home care aides.®

However, the demographics of those who provide the ser-

vices are not keeping up with those in need of them. While

the population over age 85 will double in the next 30 years,

the number of persons in the demographic of most home care

workers will increase by just 9%.°° The General Accounting

Office has developed a calculation called the “elderly support

ratio,” which represents the ratio of women aged 20-54 (the

gender and age group currently providing the vast majority of

care) to persons aged 85 and over. In 2000, that ratio was

16:1. The ratio will drop to 12:1 by 2010, 9:1 by 2030, and

6:1 by 2040.°* Nor is that gap likely to be filled by informal.

uncompensated care; the number of potential family caregiv-

ers for each person needing care is projected to decrease from

11 in 1990 to 4 in 2050.°°

The current labor shortage is largely attributable to the lack

of competitive wages and the demanding nature of the

actual number of home health caré workers significantly, by undercount-

ing individuals hired directly by households. Stone, supra note 21, at 340.

* Hecker, supra note 60, at 75 (citing BLS statistics).

* Scanlon, supra note 24, at 9. The total working age population (per-

sons aged 18 to 64) will grow by just 16% during this time period. /d

* Scanlon, supra note 24, at 9; UCSF Health Workforce Studies, supra

notel0, at 34 http://www.futurehealth.ucsf.edu/geria/062404-Geria%20

Final.pdf) (citing United States General Accounting Office, GAO analysis

of U.S. Census Bureau projections of total resident population, Middie

Series (Dec. 1999)). The ratio of the entire working age population to the

population over 85 will go from 39.5 workers per elderly person in 2000

to 22.1 in 2030 and 14.8 in 2040. Scanlon, supra note 24, at 9. These

figures assume relatively high immigration, one million net annually,

through 2030. UCSF Health Workforce Studies, supra note 10, at 35.

*5 Super, supra note 58, at 3 (citing National Family Caregivers Asso-

ciation, Family Caregiving Statistics, Kensington, Maryland, 2000).

ESS,

work.°® The Bureau of Labor Statistics found that the earn-

ings of home care workers “remain among the lowest in the

service industry,” with a 1998 mean annual income for home

health aides of $16,250 and for home care aides of $14,920.°’

In 1998, one in ten home care aides earned less than $12,300

per year, below the poverty level for a family of three.®*

Many potential home care workers have the option to

choose jobs that are better paying or less demanding than

home care, and those that do choose home care work turn

over rapidly.°’? Turnover, attributable to low wages and the

physically and emotionally demanding nature of the work,”°

has been estimated at 40-100% per year by agencies inter-

viewed for a recent news article and at 12-60% by the United

States Department for Health and Human Services.’' This

** General Accounting Office, supra note 45, at 35.

*’ Application of the FLSA to Domestic Service, supra note 11, 66

Fed. Reg. at 5483 (citing BLS Occupational Employment Statistics

survey).

8 Id

*’ Scanlon, supra note 24, at 12; Seavey & Salter, supra note 51, at 1-2.

In 2000, file clerks earned more than home health aides and significantly

more than personal and home care aides. Paraprofessional Healthcare

Institute, Long-Term Care Financing and the Long-Term Care Workforce

Crisis: Causes and Solutions \9 (Citizens for Long-Term Care: 2003)

(available at http://www.paraprofessional.org/publications/CLTC doc

rev 1 .pdf) (citing BLS data).

” Bureau of Labor Statistics, supra note 14 (Nursing, Psychiatric and

Home Health Aides; Personal and Home Care Aides); Yamada. supra

note 17, at 204.

”' Gross, supra note 35: Nat’! Ctr. for Health Workforce Analyses,

supra note 11, at 14 (citing R. Stone, Frontline Workers in Long-Term

Care: A Background Paper (\nstitute for the Future of Aging Services:

2001)); Seavey & Salter, supra note 51, at 2 (40-50% annual turnover);

Super, supra note 58, at 4 (national turnover of 28%): New York

Association of Homes & Services for the Aging. The Staffing Crisis in

New York's Continuing Care System: A Comprehensive Analysis and

turnover is expensive, costing approximately $3,362 each -

time a worker needs to be replaced.’* It also tends to dimin-

ish the quality and continuity of patient care.’

This labor shortage has already produced adverse conse-

quences for home care clients. Medicaid home care clients

have filed lawsuits in federal and state court challenging

home care payment rates on the ground that their inadequacy

has caused a shortage of necessary services.“ They have

documented incidents where individuals in need of critical

services have been trapped for hours in bed or in a bathroom,

or without food or water, because of the unavailability of

Recommendations 17 (2000) (available at http://www.nyahsa.org/docs/

Staff.pdf) (40-60% turnover in one year and 80-90% in 2 years).

” Stone, supra note 21, at 341. Stone points out that this figure does

not even take into account lost productivity during time that new workers

are trained and gain experience, or the attrition between initial hiring and

placement. /d.

3 Id

™ Seavey & Salter, supra note 51, at 14-17. The legal claims in these

actions have been based on requirements of the Medicaid statute and

federal prohibitions against discrimination based on disability. Two cases

have resulted in settlements: a federal lawsuit that prompted Mississippi

to agree to increase payments to personal care attendants by $0.50 per

hour and to seek funding from the legislature for additional pay increases,

and a state court case that caused New Hampshire to agree to establish a

new rate-setting methodology based on the average cost of providers.

Id. A California lawsuit was dismissed on the ground that the Medicaid

statute does not confer individually enforceable rights and that the state

was not violating disability law. Sanchez v. Johnson, 446 F.3d 1051,

1061, 1067-68 (9th Cir. 2005). A district court order, requiring Arizona

to offer a rate of pay that guarantees that clients will receive the services

for which they qualify, is on appeal to the Ninth Circuit. Ball v. Biedess,

2004 WL 2566262 **6-7 (Aug. 13, 2004), on appeal sub nom. Baill v.

Rodgers. A class has been certified and a motion to dismiss denied in a

pending Wisconsin case. See Nelson v. Milwaukee County, 2006 WL

290510, No. 04-C-193 (E.D. Wis. Feb. 7, 2006); Bzdawka v. Milwaukee

County, 238 F.R.D. 469 (E.D. Wis. Oct. 13, 2006).

SN 'SS =

home care aides. See, e.g. Ball, 2004 WL 2566262 at

*4 & n.3. The critical shortage of home care aides also

“encourage[s] unnecessary and premature institutional place-

ments among Medicaid participants.”’° Those unnecessary

placements, in turn, cost the federal and state governments far

“more than would otherwise be spent on home care services.’°

In sum, Petitioners and amici have it exactly backwards: it

is the /ack of FLSA coverage for agency-employed home care

workers that threatens the quality and availability of home

care services. Excluding these workers from FLSA has

contributed to a widening gap between the demand for home

care services and the supply of individuals who are willing to

commit to such underpaid and difficult work. And as the

1974 Congress recognized, providing FLSA coverage would

help to remedy this critical shortage of iabor.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

CAROL R. GOLUBOCK JONATHAN P. HIATT

1800 Massachusetts Avenue, NW JAMES B. COPPESS

Washington, DC 20036 (Counsel of Record)

815 Sixteenth Street, NW

Washington, DC 20006

(202) 637-5337

PATRICK J. SZYMANSKI]

1900 L Street, NW

Washington, DC 20036

STACEY M. LEYTON

177 Post Street, Suite 300

San Francisco, CA 94108

”® LeBlanc et al., supra note 43, at 170.

$6,870 per Medicaid personal care client in 1997-98 and $19,077 per

Medicaid nursing facility resident in 1997).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.