(Source: ALA Care/Flickr/Creative Commons)

They were to be neither nurses nor maids, but front-line careworkers whose efforts allowed frail elderly and disabled people to remain at home. They would cook and clean, groom and dress, lift and feed, even assist with medication. Sometimes they would run errands, accompany their charges to doctors, or take them on walks. Variously named “visiting housekeepers,” “homemakers,” “home attendants,” “home aides,” “home-health aides,” and “personal assistants,” they nonetheless became classified under the U.S. Employment Service’s Dictionary of Occupations as “domestic servants.”

Since the Great Depression, government programs for the unemployed, such as the Works Progress Administration, public welfare departments, and public hospitals had created and shaped this occupation. New Deal labor law, however, ignored the resulting workforce—in part, because of a deal struck that excluded from coverage occupations dominated by African Americans, and in part, because household labor was not seen as real work.

In 1974, Congress finally set out to overturn the racial bargain of the earlier era and voted to include domestic workers in the minimum wages and overtime protections of the Fair Labor Standards Act (FLSA). It was a major economic rights gain for poor and working-class women. But at that very moment, home care workers were cut out; they became redefined as “elder companions,” akin to teenage babysitters, and thus placed outside the law even when employed by a for-profit agency.

Conveniently for the newly emerging for-profit business of care, they were neither workers nor breadwinners, just mere “companions.” Nearly 35 years later, in 2007, the Supreme Court sustained the legitimacy of this rule. Still, even as it refused to recognize the sleight of hand that justified decades of wage theft, the court opened the way for Congressional redress or administrative reconsideration.

Defining care as work
The Obama administration finally has brought a measure of justice to the nation’s fastest growing low-waged workforce. Twenty-one months after the president proposed to extend FLSA protections to home care workers, Secretary of Labor Thomas Perez announced on September 17 an “important step toward guaranteeing that these professionals receive the wage protections they deserve while protecting the right of individuals to live at home.”

In naming home aides “professionals,” Perez gave notice that these workers are nobody’s friendly neighbor or wifely servant, but workers with designated skills, whether or not credentialed. It’s the job performed, not the “worker’s actual training or occupational title.” The definition of “companionship services” will no longer include household work and medically related services.

Significantly, the new rules for the first time define care as work. Care workers assist individuals with “Activities of Daily Living” (i.e., “dressing, grooming, feeding, bathing, toileting, and transferring”) and “Instrumental Activities of Daily Living” (i.e., “tasks that enable a person to live independently at home, such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications and arranging medical care”).

Whereas the 1970s regulations exempted those who spent over 20 percent of their hours in housekeeping and other domestic tasks, the new ones mandate FLSA protections for those who perform care for more than 20 percent of their time. “Companionship services,” meanwhile, is now restricted to “provision of fellowship and protection.” These might include “engag[ing] the person in social, physical, and mental activities, such as conversation, reading, games, crafts, accompanying” and being in someone’s home “to monitor the person’s safety and well-being.”

In no uncertain terms, the final rule prohibits the booming home-care industry from hiding behind the opportunistic “companionship” designation in its quest for profits. It ends agency misclassification of  employees as “companions.” Even under circumstances of joint employment with families and households, agencies must pay minimum wages and overtime. The rule limits the companionship exemption to individuals who directly employ aides who fall under stricter guidelines.

A relationship as well as an occupation
Even so, the new rule limits the hours of family members who are paid under Medicaid (or by state programs, like California’s In-Home Supportive Services) to those under a “plan of care” or other determination by social services, making it nearly impossible for such workers to receive overtime.

So yet a new arbitrary boundary is drawn between “real workers” and those allegedly who are not.

In doing so, the Department of Labor has sought to accommodate the concerns of both governors who fear ballooning costs and the independent-living movement and other consumers, as they prefer to be called, who direct the work of personal attendants and aides.

The Obama administration wouldn’t repeat the problems of the Clinton years, when proposed rules had to be withdrawn for their impact on developmentally disabled people. Home care involves the rights of consumers, too: to select those who perform intimate labors and to be secure and safe in the process. The Obama DOL thus has delayed the start date of the rule until January 2015, instead of the usual 60-day wait period, so that employers, state home care services, and users can adjust.

But there lies the pitfall.

As SEIU President Mary Kay Henry warned, this time frame should not be a green light for “agencies and states [to] make shortsighted changes to their programs that could reduce benefits or deprive consumers of the consistency of care they receive from their providers.” Conservatives in Congress might attempt to legislate the “companionship exemption” as permanent and statutory.

As employer threats to reduce hours to bypass obligations under Obamacare should warn us, the home care franchises will try to get around the new regulations.

The new regulations reflect the difficulties we have in speaking about care. In attempting to distinguish care from companionship, the rules separate physical labors from relational ones, reinforcing the division between spiritual and menial housework. But the two can’t be so easily parsed. The percentage of hours represents an attempt to quantify that which overflows such frameworks. The complexity of the rules, and their careful designation, nonetheless, reflect the attempt by administrations to come to grips with the dual nature of care as relation and labor.

For now, we celebrate a victory made possible by the organizing of care workers and their allies.

Eileen Boris is Hull Professor and Chair, Department of Feminist Studies and Professor of History, Black Studies, and Global Studies, at the University of California, Santa Barbara. Jennifer Klein is Professor of History at Yale. They co-authored Caring for America: Home Health Workers in the Shadow of the Welfare State (Oxford University Press).