Let’s say a home care agency employee comes to your parent’s residence, changes the sheets and does the laundry, helps him bathe and dress and makes his lunch before moving on to her next client. Should that employee receive minimum wage and, if she works longer than 40 hours in a week, overtime pay?  If that aide performed the same tasks in an assisted living facility or a nursing home, she would be covered under the federal Fair Labor Standards Act, like a vast majority of American workers, and would be guaranteed the minimum wage.  But in 1974, when Congress added domestic employees to the act, it exempted those providing “companionship services.” “The idea was to carve out the teenager down the street,” said Catherine Ruckelshaus, legal co-director at the National Employment Law Project. “Companions were more like elder-sitters.”  No longer the neighbor who occasionally spends an afternoon with the old woman next door, home care workers have been battling for years to get rid of that exemption. “To exclude this huge set of 1.8 million home care workers, who are trained professionals, often paid by Medicaid — it’s an enormous unintended consequence,” Ms. Ruckelshaus said.  When lawmakers introduced the exemption, she added, “they weren’t thinking of this industry. It barely existed then.”

But now that industry does exist. Home Instead, for example, employs more than 65,000 caregivers in all 50 states. And the industry wants to keep the exemption right where it is. Compel such agencies to pay workers more, executives warn, and they’ll have to raise prices for consumers. “There’s only so much a senior and a family can afford to pay,” Paul Hogan, chairman of Home Instead, told me in an interview. If you think this discussion sounds vaguely familiar, you’re right. In its waning days, the Clinton administration proposed revising the Fair Labor Standards Act to include home care workers. The arriving Bush administration reversed course. In 2007, a lawsuit by Evelyn Coke — who was retired and ailing, and who’d never gotten overtime in her many years as a home care aide on Long Island — reached the Supreme Court. The justices unanimously ruled against her.  Now, here we are again. The Labor Department has announced that it intends to re-examine the companionship exemption. If the department decides to change the regulations, a comment period will follow during which all interested parties can weigh in, pro or con. It’s a slow process, with no final decision likely for many months, perhaps even a year or longer. (click on link to read full story)