This blog frequently discusses the requirements for overtime exemption under the Fair Labor Standards Act. Most commonly discussed by our Chicago overtime lawyers is the proper classification of a worker as either an administrative, executive, or professional employee. Each of these classifications has specific requirements according to the Fair Labor Standards Act. Employers cannot simply put their employees into one of these categories without taking into consideration what the employees’ jobs entail.
Under the Fair Labor Standards Act, an employee must provide direct assistance to an executive in order to qualify for the administrative exemption. To qualify as an executive, an employee must manage other employees who report directly to her. For the professional category, an employee must utilize a particular set of skills or education in order to perform their job.
Not covered under the Fair Labor Standards Act are home healthcare workers. However, that may soon change. In December 2011, the Obama administrative proposed regulations to the Fair Labor Standards Act, which would provide nearly two million homecare workers nationwide with minimum wage and overtime protections. It is expected that they will reach a decision within the next few months.
Homecare workers in some states already have these protections under state labor law. California is one of 16 states to protect their home healthcare workers. In California alone, some 360,000 mostly unionized homecare workers are employed by In-Home Support Services, a state program, which subsidizes homecare services for about 450,000 elderly, blind, and disabled residents. However, many people work as “personal attendants” or are employed directly by private households and they are not paid overtime.
Having these protections mandated by the Federal Fair Labor Standards Act will mean some changes to the current overtime rules. Many people, including Jerry Brown, the governor of California, oppose this proposal, estimating that it will cost $150 million per year.
Some people have speculated that opponents of the new measure, such as Governor Brown, will likely react to the new ruling, if passed, by restricting the number of hours that home healthcare workers can work. Most of the healthcare industry is behind Governor Brown in opposing the new regulation. They claim that such restrictions would limit the number of hours that home healthcare workers would be allowed to work, thereby forcing many of the elderly into nursing homes. It appears to be a battle between those fighting for worker rights and those fighting for what is in the best interest of the elderly and disabled.
The Coalition for Sensible Safeguards, which has been pushing the reformation to the Fair Labor Standards Act, disagrees.
The Coalition, as well as other proponents of the new measure, argue that home healthcare workers are entitled to the same rights and protections as every other employee in the country.
Higher minimum wage and overtime pay, they argue, will lead to a lower turnover rate which, in turn, will benefit the patients.
The primary reason that Congress is proposing the rule change is to encourage friends and neighbors to help the elderly in their neighborhoods and communities.