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City lawyers are working to keep wages for home health workers low, City Limits has learned, even as their colleagues in city government discuss ways to help them move out of poverty. While the mayor’s high-profile Commission on Economic Opportunity recently announced it would be building a “career ladder” out of poverty for the lowest rung of health workers, city lawyers are fighting to keep home health aides from being entitled to minimum wage and overtime.

On Jan. 5, the U.S. Supreme Court agreed to hear Coke v. Long Island Care at Home, a five-year-old case seeking to bring home health aides under minimum wage and overtime laws. City lawyers said last week they plan to file an amicus curiae or “friend of the court” brief in support of maintaining the pay exemption before the case is heard this spring.

Originally filed in 2002 by Long Island Care at Home employee Evelyn Coke, who argued she had been denied overtime and occasionally didn’t even make minimum wage, the case could overturn a 1975 federal regulation that exempts home care workers from national minimum wage and overtime laws. Written before the explosion of home health services driven by Medicaid – in 1975, there were fewer than 50 for-profit home health agencies nationwide – the regulation exempted babysitters and other “companionship care” workers. By 1999, there were more than 3,000 such agencies across the country.

That’s meant a spike in the number of employees at those agencies. Today, New York City’s 100,000 health and personal care workers comprise one in seven of the city’s low-income workers. That makes them the second-largest share of low-income workers in the city (the first being retail workers), at a median wage of $8.38, according to a recent Paraprofessional Healthcare Institute study. By 2012, their ranks are expected to grow by 30 percent, making them one of the city’s fastest-growing occupations.

“Because the minimum wage is so low, they’re typically getting more than the minimum wage, but [the implications of the case are] significant for their overtime,” said Paul Sonn of the Brennan Center for Justice at NYU, which has worked on successful state-level efforts to rescind the exemption in Arizona and Ohio. “I don’t think [the city has] any animus to home health care workers, they just view it as a budget issue,” said Sonn.

Indeed, bringing home health aides under the labor law would cost the city a pretty penny, most of it due to overtime costs. Paying the overtime for workers caring for 50,000 patients in the city’s Personal Care Services program, one of three Medicaid programs paying home health aides, would start at $279 million annually. The cost of including aides who care for another 20,000 patients in the two other programs has yet to be calculated.

That looming expense has led the city to actively argue against including home health aides in federal labor protections. Similar concerns from federal agencies thwarted a federal Department of Labor proposal to remove the exemption in 2001; DOL officials held that it was “clearly Congress’ intent … to cover all workers who performed domestic services as a vocation.” Nonetheless, cost concerns raised by the Small Business Administration and Department of Health and Human Services compelled officials to retract the proposal.

Since becoming involved with the case in 2003, the city has submitted supporting documents at every step as it has bounced between jurisdictions. “We are pleased that the U.S. Supreme Court has decided to review this important case,” said Susan Choi-Hausman, the corporation counsel lawyer working on the case.

Bloomberg spokesman Jason Post had no comment on whether the legal position runs counter to the efforts of the Commission on Economic Opportunity. Deputy Mayor for Health and Human Services Linda I. Gibbs declined to comment through Post, who said the Law Department’s “response will speak for Deputy Mayor Gibbs.”

– Tracie McMillan

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