When domestic workers were brought under the FLSA in 1975, casual babysitters and people taking care of elderly and disabled people in the home were excluded. The theory was that these weren't really full-time jobs, that it was a matter of chatting with and providing companionship for a senior citizen, coupled with maybe a few light tasks like preparing lunch. But the reality of home care today includes bathing, toileting and much more. Moreover, in many cases, the home care worker is directly employed by an agency, not by the person being cared for, and the worker cares for several people, traveling from house to house to bathe, toilet, and dress people one after another, not stopping for long stints of personal companionship.
The Labor Department's new rule is crafted to continue to exempt occasional providers of companionship while covering people who do this work for a living: Those who are hired by third-party agencies are always covered by minimum wage and overtime laws. By contrast, home care workers hired directly by an individual or family are exempt from minimum wage and overtime if they spend less than 20 percent of their working hours on care activities such as "such as dressing, grooming, feeding, bathing, toileting, and transferring [...] meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care." Live-in workers, too, are distinguished by whether they are working directly for the individual or family or are employed by a third party; if employed by a third party, they are entitled to both minimum wage and overtime, while if employed by an individual or family they are entitled to minimum wage but not overtime.
Home care work still isn't going to pay what such a difficult and important job should, and doubtless some employers will respond to this new rule by preventing workers from working more than 40 hours a week once they're eligible for overtime. But having the fastest-growing job in the country exempt from some of the most basic wage laws is an inexcusable state of affairs. And this president, who as a presidential candidate walked a day in the shoes of a home care worker, is finally bringing those protections to nearly 2 million workers.