IHSS Workers Finally Get Overtime Pay But Still Lack Labor Protections

By: Eugene Lin

With the overturning of a federal decision this past August, California’s IHSS workers seem to have navigated one last hurdle to overtime pay. Despite this gain, IHSS workers have yet to attain paid sick leave or “agency shop” structures for organization. California In Home Supportive Services is a state program that provides help to pay for services for individuals 65 years of age or older, disabled, blind, and possibly disabled children that include housecleaning, meal preparation, and personal care services.[1]

The U.S. Department of Labor rule guaranteed all home health care workers the Federal minimum wage of $7.25 an hour, as well as time and a half overtime wages for hours worked beyond forty hours a week. [2] The Fair Labor Practices Act provides for home health care workers to minimum wage[3] and overtime wages. [4] Unfortunately, a Federal Judge determined that overtime wages were not to be applied to IHSS workers and on January 16th, 2015 the California Department of Social Services stated that California wouldn’t be implementing overtime pay for IHSS workers per the federal decision. [5]

On August 21, a Federal Appeals Court reversed the decision.[6] Additionally an appeals court order on September 18 denied a motion for a stay of the August 21 order.[7] The appeal to the Supreme Court will continue but without the stay, allowing the order to take effect on October 13. A timetable for the implementation of the overtime rules is not yet available from California state officials. Although IHSS workers have acquired overtime pay, a Supreme Court challenge to the decision may be forthcoming. The current California state budget has replaced the seven percent cut in recipient hours that had been in place for the last year.[8] The limitation in hours would blunt the overtime hour decision and a long-term defense to this kind of future budget adjustment is currently not in place.

Despite California’s Healthy Workplace Healthy Family Act of 2014 (AB 1522), IHSS workers still don’t have paid sick leave. The law is designed to allow one hour of paid leave for every 30 hours worked but specifically excludes home health care workers.[9] The definition of a employee in the California Labor Code specifically excludes home health care workers such as employees of IHSS. [10]

Though the SEIU is active in organizing IHSS workers, a Supreme Court ruling has made organizing activities more difficult by their designation of IHSS workers as not fully government employees because IHSS workers are chosen by their clients.[11] In Harris v. Quinn the Supreme Court decided that home health care workers can’t be compelled to pay union dues in an “agency shop” structure, that is they can’t have that fee deducted form their salaries whether they join a union or not.[12] The decision differentiated “partial public employees” and “regular public employees.” Home health care workers in Illinois are considered “partial public employees” and are only public employees for collective bargaining purposes. I HSS employees fall under the description of “partial public employees” and cannot enter such shop arrangements. [13]

[1] In-Home Supportive Services Program, CA.gov Dep’t of Social Services, http://www.cdss.ca.gov/agedblinddisabled/pg1296.htm (last visited Sept. 20, 2015).

[2] Minimum wage, overtime protections, extended to direct care workers by U.S. Labor Department, United States Dep’t of Labor (September 17, 2013), http://www.dol.gov/opa/media/press/whd/WHD20131922.htm.

[3] 29 U.S.C.A. § 206(f)(2)(A) (West 2015).

[4] 29 U.S.C.A. § 207(l) (West 2015).

[5] Judge Overturns Overtime for Homecare Workers, CUHW Cal. United Health Care Workers, http://www.cuhw.org/2015/01/judge-delays-overtime-for-homecare-workers/ (updated April 13, 2015).

[6]Home Care Ass’n of Am. v. Weil, No. 15-5018, 2015 WL 4978980 (D.C. Cir. Aug. 21, 2015).

[7] Federal court rules in favor of overtime pay for homecare workers, UDW The Homecare Providers Union, (Aug. 21, 2015), http://www.udwa.org/2015/08/federal-court-rules-in-favor-of-overtime-pay-for-homecare-workers/.

[8] Steven Mikulan, In-Home Care Recipients Cautiously Applaud New Budget, San Diego Free Press (June 22, 2015), http://sandiegofreepress.org/2015/06/in-home-care-recipients-cautiously-applaud-new-budget/.

[9] Healthy Workplace Healthy Family Act of 2014 (AB 1522), State of Cal. Dep’t of Indus. Relations, http://www.dir.ca.gov/dlse/ab1522.html (last visited Sept. 20, 2015).

[10] Cal. Lab. Code § 245.5 (West 2015).

[11] Dan Waters, Dan Waters: As home care program shifts, adversarial relationship evolves, The Sacramento Bee (September 8, 2014), http://www.sacbee.com/news/politics-government/dan-walters/article2608960.html.

[12] Harris v. Quinn, 134 S. Ct. 2618, 189 L. Ed. 2d 620 (2014).

[13] Cynthia Estlund and William E. Forbath, The War on Workers, The Supreme Court Ruling on Harris v. Quinn Is a Blow to Unions, The New York Times (July 2, 2014), http://www.nytimes.com/2014/07/03/opinion/the-supreme-court-ruling-on-harris-v-quinn-is-a-blow-for-unions.html?_r=0.

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