Court Underestimates Value of Support

Long Island Care at Home vs. Coke: a Bad Decision and a Call to Action Evelyn Coke immigrated to the […]

Long Island Care at Home vs. Coke: a Bad Decision and a Call to Action

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.

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