Aging and Caring in the Home: Regulating Paid Domesticity in the Twenty-First Century

• Author: Peggie R. Smith
• Position: Professor of Law, The University of Iowa College of Law
• Pages: 1837-1900

Professor of Law, The University of Iowa College of Law. J.D., Harvard Law School, 1993; M.A., Yale University, 1990; B.A., Yale University, 1987. I wish to thank Katharine Baker, Rafael Gely, and Martin Malin for providing helpful suggestions during the writing of this paper, as well as participants of the Iowa College of Law Faculty Workshop and the Emory Law School Faculty Colloquium.

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I Introduction

Home is the preferred setting of most elderly Americans who require long-term care.¹ In the coming years, as the baby-boom generation sparks an unprecedented increase in the size of the elderly population,² more and more households will usher workers into their homes to help care for aging family members. Indeed, with an expected growth rate of close to sixty percent, home care is the industry sector where employment is projected to grow the fastest.³ Briefly defined, home care" refers to in-home services provided by paid workers to individuals who, because of age or disability, need assistance with activities such as bathing, dressing, personal hygiene, household chores, and shopping.⁴ The majority of home-care consumers arePage 1838 elderly.⁵ A diverse industry,⁶ home care employs personnel that includes home-health aides,⁷ home-care aides,⁸ and personal-care aides.⁹ Irrespective of the specific occupational heading, when these workers cross the threshold into the private domestic sphere, they confront a unique set of challenges that affects their working conditions and the quality of care they provide. This Article examines the evolving status of home-care workers in employment law and argues for increased protection of their workplace rights. Against the backdrop of limited funding for long-term care of the elderly,¹⁰ employment law frequently subjugates the labor rights of home-Page 1839care workers to the needs of their elderly clients and, in the process, undermines both groups' interests.

Although the demand for home care is staggering,¹¹ workers are poorly paid and have access to few benefits.¹² With a workforce overwhelmingly dominated by women,¹³ home care prompts comparisons to domestic service.¹⁴ As is true of domestic service, home care entails household dutiesPage 1840 and caregiving activities, and workers constantly struggle to gain economic respect for their work. Unlike traditionally privileged consumers of domestic service, however, home-care consumers are far more economically diverse, consisting of the rich, the middle class, and the poor.¹⁵ As a form of long-term care for the elderly and the disabled, home care is often funded by the government,¹⁶ unlike domestic service. Another critical distinction centers on the character of the employment relationship. Contrary to the one-onone employment arrangement that exists between a domestic service worker and an employing household, home care often involves third-party employers.¹⁷ Yet despite these and other differences, the law treats home care as a form of domestic service-as a labor oddity. Similar to domestic service workers, the women who labor in home care are routinely denied legal protections afforded to other workers.

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The lack of adequate protection partially reflects an employment law framework that presupposes a world in which workers leave the confines of their private homes and travel to public workplaces.¹⁸ Home care, however, blurs the boundaries between private and public, home and market, and family and work. While not the first work activity to straddle these boundaries,¹⁹ home care's sheer projected magnitude and growing importance may help catalyze policymakers to retool employment policy for the twenty-first century.²⁰

This Article focuses on two areas of federal employment law and examines their relevance for home-care workers: wage and hour regulations, and health and safety regulations. Low wages and a high incidence of work-related injuries cause workers to flee the job and frustrate efforts to recruit new workers. The Article argues that courts and regulators exacerbate these problems by denying workers crucial workplace rights under the Fair Labor Standards Act ("FLSA")²¹ and the Occupational Safety and Health Act ("OSH Act").²²

Application of these two statutes to home care invariably raises a tension between protection for workers and the needs of home-care clients, and it generally resolves the tension in favor of the latter. In the context of wages, some observers fear that increased compensation for workers will lead toPage 1842 decreased access to home-care services for the elderly.²³ In the area of safety and health, the tension argues against using the OSH Act to reduce home-care workers' exposure to occupational hazards for fear that doing so may compromise clients' privacy and limit the availability of services.²⁴

Two background observations guide this Article as it strives to strike a balance between these often competing interests. First, concerns about the accessibility and availability of home-care services primarily affect poor and low-income clients who rely on public funding, and those middle-class clients who, as a result of using personal funds to finance home care, may be on the path to impoverishment.²⁵ Reasoned disagreement exists over whether society should accept collective responsibility to provide elderly individuals with access to affordable health services.²⁶ This Article, while touching upon that debate only briefly, takes the position that the responsibility should not rest on the weary shoulders of home-care workers in the form of substandard wages. Denying poor and low-income workers adequate compensation in order to ensure that clients have access to home care is an unacceptable response to the problem of inadequate services.

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Second, regarding the potential trade-off between diminished privacy for clients and enhanced safety and health for workers, one must recognize that strategies to protect the health and safety of workers will often lead to improved outcomes for clients. For example, when a worker falls while trying to lift an immobile client into a chair, the potential adverse consequences will likely affect both the worker and the client. Conversely, both parties stand to benefit when a worker receives the training and equipment necessary to perform her job in a manner that will lessen the risk of injury.

The remainder of this Article is divided into four substantive Parts. Part I details relevant issues relating to the demand for, and supply of, home-care workers, focusing on demographic trends with respect to America's elderly population and occupational characteristics of home-care workers. Part II examines the link between home care and domestic service by considering the historical treatment of domestic service workers in employment law.

Parts III and IV assert that regulatory changes in the application of the FLSA and the OSH Act could enhance the protection of and increase the supply of workers, since poor compensation and occupational hazards pose key barriers to recruiting and retaining these individuals. Part III investigates the FLSA's companionship-services exemption. Crafted by Congress to exclude "elder sitters" from the Act, the provision exempts home-care employers, including third-party employers, from the Act's minimum-wage and overtime requirements. Part IV, which focuses on the OSH Act, begins with an overview of the Occupational Safety and Health Administration's ("OSHA") first major foray into regulating the home as a workplace when it attempted to regulate telecommuting employees who work from home offices. Next, Part IV examines OSHA's potential to address home-care workers' exposure to bloodborne pathogens and to reduce injuries associated with lifting and moving clients. Although the OSH Act does not exclude home-care workers, the Article argues that OSHA has largely neglected the safety and health hazards that these workers confront. Part IV also considers the balance that policymakers should strike between the privacy concerns of clients and the health and safety of workers, and it concludes that the former should not trump the latter.

II On Aging and Caring

The substantial growth of America's elderly population drives the exploding demand for home care.²⁷ In 1900, the U.S. population included 3.1 million people aged sixty-five and older, accounting for four percent ofPage 1844 the total population.²⁸ By 2003, the sixty-five-and-older population was close to 36 million, representing twelve percent of the total population.²⁹According to projections, 72 million Americans will be sixty-five and older by 2030, representing twenty percent of the total population.³⁰ The projected climb from 2003 to 2030 tracks the aging of the baby boomers who comprise the 76 million people born in the United States from 1946 to 1964.³¹ The...