Long History: Slow Progress in the Struggle for Caregiver Compensation

The Social Security Act of 1935 excluded all domestic household employees,1 even though 5% of all gainfully employed people were “engaged in employment service in private homes” and needed “protection of old-age insurance fully as much as do other groups of workers.”2  

In 1949, Republicans Noah Mason (IL) and Robert Kean (NJ) began the effort in Congress to extend Social Security coverage to more domestic workers, so people who were less regularly employed could be covered.3 

In 1950, Congress broadened Social Security coverage to include many domestic household employees, but there was still the requirement that the worker be “regularly employed” by the same employer in order to earn quarters of coverage.4 There was no coverage unless the domestic worker was employed for at least 24 days by a single employer during two calendar quarters.5

The 24-day “regularity-of-employment” test was eliminated in1955 when “domestic workers were covered for any quarter in which they were paid at least $50 in cash by one employer. This provided Social Security coverage to an additional 150,000 domestic workers.”  $50 was the average pay for 10 days of work in 1950.6 

It wasn't until 1974 that the Fair Labor Standards Act (FLSA) was amended to include minimum wage and overtime protection for “employees in ‘domestic service.’”  But companionship services were still exempted from minimum-wage and overtime pay requirements, and live-in domestic workers remained exempt from overtime.7 

In 1975, DOL regulations allowed “third party agencies” to take advantage of the companionship and live-in exemptions."8 

In 2002, a caregiver tried to challenge the companionship-services exemption that excused her home care agency employer from paying overtime, but the Supreme Court rejected her challenge.9  

The Department of Labor finally decided to reverse itself in 2013, using the rationale that caregiving had changed since the 1970s when “’many individuals with significant care needs were served in institutional settings rather than in their homes.’"10  

In 2015, the DC Circuit in Weil affirmed the DOL’s updated FLSA regulations, echoing the notion that "’[a]s more individuals receive services at home rather than in nursing homes and other institutions, workers who provide home care services ... perform increasingly skilled duties’ analogous to the professional services performed in institutions.’”11 

Is the Weil rationale, repeated from the Federal Register, really accurate? The skills and qualities required for caregiving haven’t changed during the long decades of debate. Being a care worker has always required “’warmth, concern for people, tolerance, emotional maturity’ and an ‘inherent ability to give of one’s self in helping others.’”12 

1 DeWitt, The Decision to Exclude Agricultural and Domestic Workers from the 1935 Social Security Act, Social Security Bulletin, Vol. 70, No. 4 (2010) 

2 Needleman, Domestic Workers in Private Homes, Social Security Bulletin (March, 1939) https://www.ssa.gov/policy/docs/ssb/v2n3/v2n3p10.pdf

3 Major Decisions in the House and Senate on Social Security: 1935-2000, supra

4 Kollmann & Solomon-Fears, Major Decisions in the House and Senate on Social Security: 1935-2000 https://www.ssa.gov/history/reports/crsleghist3.html

5 Employment Covered Under the Social Security Program, Social Security Bulletin, April, 1985. https://www.ssa.gov/policy/docs/ssb/v48n4/v48n4p33.pdf

6 Employment Covered Under the Social Security Program, supra.

7 Home Care Association of America, et al. v. Weil, 799 F.3d 1084, 1095 (D.C. Cir. 2015), cert. denied 136 S.Ct. 2506 (2016). https://scholar.google.com/scholar_case?case=2772526862415293337&hl=en&as_sdt=40000006

8 Weil, supra, citing 29 C.F.R. § 552.109(a), (c).

9 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007). https://scholar.google.com/scholar_case?case=17602197794774237355&hl=en&as_sdt=40000006

10 Weil, supra, quoting Application of the FLSA to Domestic Service, 78 Fed. Reg. 60,454, 60,455 (Oct. 1, 2013).

11 Id.

12 Boris, Decent Work in the Home: Affect and Rights Talk, 15 Santa Clara Journal of International Law (Feb. 3, 2017), quoting Doscher, Report of The 1964 National Conference On Homemaker Services 22 (1964).

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