New Overtime Law Has Far-Reaching Effects on Home Health Care Industry

by David Gorn, California Healthline Sacramento Bureau

TOPIC ALERT:

The basic tenet of a new home health care law seems straightforward and unassailable: Workers who work more than nine hours at a time are entitled to overtime pay.

But it may not be as simple as that. Many in the home health industry say the practical application of overtime will spell the end of live-in care and could actually result in lower earnings for home health workers.

On Jan. 1, the Domestic Worker Bill of Rights (AB 241), created by Assembly member Tom Ammiano (D-San Francisco), took effect. It regulates the number of consecutive hours for home health care workers and requires overtime pay for long work shifts.

California now is one of 16 states with some type of overtime requirement for home health workers. The law is about doing the right thing for both workers and employers, according to Lindsay Imai Hong, Bay Area organizer for Hand in Hand, a national association of domestic-worker employers.

"This work is real work. In most cases, it's hard work," Imai Hong said. "And it deserves the same kind of protections as all labor."

Making the industry sustainable will be the end result of the law, rather than overworking and undercompensating workers and having that be the norm, she said. In the old days, live-in care may have been a more casual arrangement, but now workers make a living at it, and a growing number of seniors in California depend on it, Imai Hong said.

"It's important to professionalize the work, to create sustainable jobs and make sure the work shifts are sustainable," she said. "If they're working long hours, they get paid for long hours, and they don't have to take another job."

Another job is exactly what they'll need to take, according to Kathy Janz, director of Matched Caregivers, a home health agency in Menlo Park. Many home health employers need 24-hour care, so 12-hour shifts are common in home health care, Janz said.

"When you turn two 12-hour shifts into three 8-hour shifts, you're cutting workers' hours," Janz said. "That forces them to go to other jobs."

The unintended result, Janz said, is the exact opposite of the legitimizing intent of the law.

"What we're seeing is a lot of underground stuff," Janz said. "A lot of these people now will have to go underground."

A Question of Choice

Kirsten Goulde, human resources director for LivHOME, a home care agency based in Los Angeles, said the intent of the new law is noble but the practical application of it is causing trouble for families across the state.

"Clients and family members are scrambling to find suitable alternatives," Goulde said. "They've had to make financial decisions, had to reschedule or find other staff. Some are going to facility-based care. What we've seen is a lot of scrambling to find the most common-sense solution."

Goulde said people who require 24-hour care will feel the changes the most, and that makes the law a health problem not just a labor issue. 

"The folks who need the greatest amount of care, those are the most vulnerable individuals, the ones with the most acute health care problem," she said.

Switching from two 12-hour shifts to three 8-hour shifts seems inconsequential, but for someone with cognitive problems like dementia, having one more person come to the house can create confusion and consternation, Goulde said.

"I think what we all feel is a choice for care has been reduced or eliminated or made unreachable," Goulde said. "We're concerned about the health and psychological well-being of our clients. In this industry, we hate to see the narrowing of choice."

'Some People Are Going To Have To Change Their Practices'

Change can be difficult, but in the long run -- "over time," as Imai Hong puts it -- the quality of care will increase as workers get the rest they need, Imai Hong said.

Taking advantage of a low-income workforce by expecting overtime hours without overtime pay hurts both the employer and employee in home health situations, Imai Hong said.

"The reality is, some people are going to have to change their practices," Imai Hong said. "This is going to impact people who feel they need 24-hour care, and require them to hire more workers."

"We think it's a worthwhile change," she said. "It's not just about compensating, but also about creating a sustainable workplace, over time. In the end, you don't want caregivers working very long work shifts, so we believe that benefits both the worker and the employer."

If families hire multiple caregivers throughout the day, they're covered whenever someone gets sick. "Then you have backup," Imai Hong said. "There's work involved in training people, but at end of the day, the people you employ are critical to the health of the client."

Imai Hong said it's like any human interaction, mutual respect breeds mutual benefit. "In any relationship, when there's respect, there's better care," she said. "A cared-for workforce is a workforce that can provide better care."

More Changes May Be Ahead

The new legislation may not be the last word, according to Katie Joaquin, a campaign coordinator for the bill on behalf of Mujeres Unidas y Activas (Women United and Active).

"This law is one that represents a first step in the right direction of what it looks like to have a sustainable and dignified home health care workforce," Joaquin said.

One possible next step, Joaquin said, is to establish a sleep standard for overnight workers -- a provision that was in the original proposal but was compromised out of the bill.

"One of those basic things is sleep," she said. "One of those provisions is a standard for a humane number of hours of uninterrupted sleep."

Instituting these basic labor laws, Imai Hong said, takes this issue beyond just a labor concern.

"I think it is a health issue," Imai Hong said. "This is an industry that's been historically unregulated, with a lot of abuse of workers. By putting labor protections in place, I think the workforce will be more stable and consistent, not so rife with turnover. As employers, we support it."

Next Steps for the Law

The new law, due to sunset in 2017, calls for formation of an evaluation committee to review and analyze the effectiveness of the overtime provision over the next three years.

The California Department of Industrial Relations is expected to start forming that committee this month.

One of the areas the committee will monitor is whether the law prompts more underground caregiving, as Janz said is happening.

"Look, it's not going to be simple," she said. "People will have to go underground. The total number of hours you will see will be very different from the reported hours. There are a huge number of unreported hours now. And that will only increase."

That could take tax dollars from the state, Janz said, and Goulde said it could put families who pay workers under the table in a precarious position.

"The challenge I think is if there's a dispute over wages or the relationship becomes troubled. Then there may be a wage claim coming about. Definitely there is greater concern between private caregivers and the household," Goulde said.

Imai Hong said concerns people have are real but overall, the new law is beneficial.

"We think the benefits outweigh the negatives," she said. "By providing this very basic labor protection, it ultimately helps create a more sustainable job and a sustainable workforce.

"It will require some adjustment, no doubt," Imai Hong said. "But it will ultimately benefit the families and the seniors and the people who work for them."

Kathy Janz
While the full service home care agencies are cutting back aide hours and costs are going up, we are continuing to see the realities of a huge growing underground economy. An aide we terminated in 1997 after not showing up on a case nor calling in, came in to the office today- 14 years later. She has been working "privately" for years with one case for ten years and then with a home care agency that just issues 1099s. She appears to have suffered a stroke during that time and her very limited social security/disability contributions have her looking for work when she is barely able to walk and frailer than the clients we serve. The referral agencies that just issue 1099s are exempted from the state overtime law and the private family hires from the federal DOL change, so the situation she is in will continue to re-occur. While she should have been more cognizant of the downside of working without payroll tax contributions, the government should really know better.
Tina Alfinito
Also, that overtime will go to the government, not the worker. The worker ends up with only a few dollars out of every hour! So the government thinks it will get more revenue, but they are wrong. When more employers pay under the table, tax revenue will drop. There are already a major amount of under the table funds being paid to healthcare workers, now they are punishing those who don't pay under the table!!! I'd sure like to hear MS. Hong's side of these comments. Someone didn't do their home work.
Tina Alfinito
Absolutely right, John! A spike in nursing homes admit and to what cost and who pays? Skilled nursing facilities run as high as $27,000.00 a MONTH!!! Yes, Twenty Seven Thousand Dollars a month! We all pay for that when the payments are subsidized (MRMIP) or Medical/Medicare. If not through premiums, through higher taxes and the discontinuing of other programs and such. It is a LOSE LOSE deal, all the way around. QUESTION....What can we do???
Vincent Mc Cormack
The caregivers/homemakers are NOT State employees or County employees. Those who do not want to belong to SEIU, the union that represents homemakers, have to pay a fee equal to the dues because they belong to an agency shop. The union offers insurance and other benefits to their members. The agency shop was created because every homemaker benfits equally from the Memorandum Of Understanding (MOU- the contract between the union and the government) regardless of wether they are members or not.
Vincent Mc Cormack
No. The State does NOT employ homemakers. They consumer does but the homemaker gets paid with money set by the state for the IHSS Program. The state is not responsible for backgound checks on the homemakers nor paying taxes or health insurance or retirement. The homemakers do not get pay OT because the county Social Workers set the amount of hours a person can work for a consumer. Any work done beyond the set amount of hours are not reimbursed. The garegiver/homemaker MUST fill a time card and has to be signed by the consumer, usually a senior, in order to get pay by the county that administers the IHSS money.

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