Evelyn Coke immigrated to
the U.S from Jamaica. For 20 years she worked for Long Island Care
at Home as a personal care assistant. The agency provides personal
care assistants to seniors and persons with disabilities. During
that time, Coke often stayed with her customers overnight, or more
than 24 hours, when another personal care assistant didn’t
show up, or when a customer needed more care than their benefits
would pay for. She was never paid a higher wage than $7.00 an hour,
got no overtime for hours worked more than eight hours a day, and
received no health insurance benefits. Then, in 2001, Ms. Coke was
hit by a car and suffered injuries that precluded her from performing
this work. Ms. Coke went to see a lawyer, who thought that under
the Fair Labor Standards Act, she should have been paid for overtime
work. She filed suit in 2002 and now, five years later, has finally
reached the end of the road—a
dead end. The Supreme Court unanimously ruled to deny her the compensation
she sought. Ms. Coke, at 73, has several serious disabilities, including
diabetes, which has led to kidney failure and her need for dialysis three
times-a-week.
This case had a long
procedural history. The Fair Labor Standards Act was amended in
1974 to provide minimum wage protection and overtime compensation
for domestic service employees. However, the amendment exempted
from coverage certain kinds of domestic service employees, including
workers providing “companionship services.” At
the time, the Department of Labor (DOL) established regulations, including
some that appeared to be contradictory to the amendment’s intent.
One of these regulations would seem to exclude from coverage only
companionship service workers employed by a third party to provide
services to someone in his/her home. Ms. Coke argued that this second
more exclusionary amendment was unenforceable, and that Congress
never meant for such domestic workers to be so excluded. Thus, Ms.
Coke requested compensation for the years of unpaid overtime.
Ms. Coke faced stiff opposition. Rallying behind Long Island Care
were various associations representing the interests of agencies who
hire and provide personal care assistants. They argued that if they
were forced to pay overtime compensation, their costs would rise to
billions of dollars, either putting them out of business or preventing
them from providing assistance to persons in their homes.
The District Court found
that the Fair Labor Standards Act exempted Ms. Coke from its coverage
because she was a “personal services” worker,
and dismissed the case.
Coke appealed to the
2nd Circuit Court of appeals, which overturned the district court
decision. They agreed with Ms. Coke that the regulation, as interpreted
by the DOL, was unenforceable. Long Island Care appealed the case
to the Supreme Court. At this point, the DOL issued an “advisory
memorandum” to further explain its interpretation of the regulation
that Ms. Coke, and other personal care assistants, were exempt from
coverage by the Fair Labor Standards Act. The Supreme Court sent
the case back to the Court of Appeals and asked them to revisit their
decision, taking into consideration this memorandum. The Court of
Appeals found that this “interpretation memorandum” was
not due the deference of a DOL regulation, and affirmed its original
decision. The Supreme Court then took up the case and issued its
decision on June 11, 2007.
The Supreme Court ruled
against Ms. Coke. They held, by unanimous vote, that the DOL’s
regulations were not inconsistent with each other, and that agency
interpretation was to be given deference. The High Court pointed
out that the DOL had, on three separate occasions, sought public
comment to amend the Fair Labor Standards Act to provide such workers
coverage, but on all three occasions they withdrew the proposed
amendments. Thus, the court reasoned, the DOL had carefully considered
the issue and still held to the original amendments set forth in
1974.
Hope on the Horizon
The problem,
back in 1974 and still today, seems to be that the government has
generally held the services of personal care attendants in low regard.
Defining these workers as providing “companionship services” is
a complete misnomer, as anyone with disabilities who needs the services
of such assistants to remain independent at home will attest.
Thankfully, others have
been hard at work to change the dim public perception of such work.
A coalition of organizations called National Alliance of Direct
Support Professionals, NADSP, is one such group. “We
started by coming up with a better name that more accurately described
the work performed by personal care assistants; this name is “Direct
Support Professionals,” said Mark Olson, president of NADSP. “It
is our goal to make this a career that people will seek, and which
will provide a living wage and promote life-long learning for people
who go into this profession.”
Readers can learn more
about this alliance, or join it as an individual or organization,
by going to their Web site: www.nadsp.org.
A review of the Web site shows that NADSP has engaged in four very
essential tasks to bring about their mission. First, they have
worked with the Department of Labor, both to have the DOL include “Direct
Support Professional” as a job title in its Dictionary of
Occupational Titles, and also to provide certified state apprenticeship
programs. Second, they’ve worked to establish a degree program.
Third, the NADSP has proposed Rules of Ethics for their organization.
Finally,
NADSP is educating Congress on the need of persons with disabilities
to live independently at home, and the need for persons who care
for them to have pride in their work and to make a living wage.
See article by
Poetz and Olson. ![]()
Kathleen Hagen is a staff
attorney at the Minnesota Disability Law Center.
