Chris Head

The National Federation of Independent Business held a news conference this morning at Home Instead Senior Care with co-owners Chris and Betsy Head to protest a proposed regulation from the Department of Labor.

We missed the conference, but I caught up this afternoon with Chris Head — who represents the 17th District in the House of Delegates — to find out what’s going on.

At issue is a proposed change to regulations for “domestic service” workers under the Fair Labor Standards Act. Congress expanded the act in 1974, but carved out exemptions so that casual babysitters and companions for the aged and infirm did not have to be paid minimum wage or overtime. Now, the Labor Department is considering dramatically limiting those exemptions so they don’t apply to employees of businesses like Home Instead Senior Care.

Here’s the Labor Department’s reasoning:

There has been a growing demand for long-term in-home care, and as a result the in-home care services industry has grown substantially. However, the earnings of in-home care employees remain among the lowest in the service industry, impeding efforts to improve both jobs and care. Moreover, the workers that are employed by in-home care staffing agencies are not the workers that Congress envisioned when it enacted the companionship exemption (i.e., neighbors performing elder sitting), but instead are professional caregivers entitled to FLSA protections. In view of these changes, the Department believes it is appropriate to reconsider whether the scope of the regulations are now too broad and not in harmony with Congressional intent.

Head said he has no problem with the minimum wage question. Home Instead’s average wage is $9.40 an hour, he said, and no one’s working for less than $8.50.

But he does have qualms with the overtime piece. Here’s why:

“A large chunk of our workers provide a service we call a sleepover night. We charge our clients and pay our caregivers on a flat shift wage. The shift runs from 10 to 12 hours and the caregiver is expected to be able to get a good night’s sleep while they’re there.

It’s extremely important because getting in and out of bed, getting dressed and undressed — those are the times at which seniors are at the highest risk for falls. Same thing with getting up for the bathroom. So it’s important to have someone there.”

Some workers who perform those services work part-time to supplement another job. That’s no big deal, Head said. But others do that job and then come in to work day shifts. As a result, they end up with 50 or 60 hours on their timecard for that week — which of course includes at least several hours of sleep during the overnight shift.

If the Labor Department’s proposed regulation takes effect, Head said, he’ll either need to raise rates or hire a bunch of new workers, which he worries may cause problems with some cognitively impaired clients where the addition of extra people may cause confusion.

Head said the new regs would increase the cost of care by roughly 20 percent. “We anticipate that between 20 and 25 percent of our clients receiving care will have to go elsewhere, either to institutionalized settings, or do without, or go into the gray market and hire someone by paying underthe table without any of the insurance or oversight or other benefits of going through an agency,” he said.

Head said the public comment period on the proposed regulation ended about a month ago. The Labor Department must give 60 days notice before it implements the new regulation. So he and the NFIB are looking to put political pressure on the agency to keep the regulations as they are now.

You can read a more extensive discussion of the proposal with Steven Greenhouse, the labor and workplace reporter for the New York Times, on NPR’s “Talk of the Nation.”

– Mason Adams