Is Wage Theft Inevitable without a Fixed Time Clock?

BOS-Homecare-20131105-580pxNew York    Finally, it’s settled. The Supreme Court refused to hear the last gasp appeal from the industry that represents homecare employers, so it is now indisputable that homecare workers will be eligible for the minimum wage and overtime pay. This issue has been a festering sore since domestic and household workers were included in coverage under the Fair Labor Standards Act when amended in 1975 and set for full compliance in 1978-1979. We organized the Household Workers Organizing Committee in New Orleans to take advantage of the fact that they would be covered under what many of them called the “top wage,” rather than the minimum wage then.

Now, the question will be whether or not homecare workers will really receive the money, especially the overtime. Like other informal workers and even the much touted “gig” workers celebrated by techsters and others without a fixed workplace and a reliable time clock will wage theft become simply a given assumption as part of the terms and conditions of employment? The promoters endlessly flack the flexibility supposedly enjoyed by informal workers, but is this a euphemism for instability and an invitation for wage theft.

Transportation is perhaps the best example of the penalties experienced by non-workplace based workers. Over the years, the nonpayment of hours spent in transportation to various worksites by homecare workers was frequently an invaluable tactic for our unions to create leverage at the bargaining table or to punish recalcitrant homecare employers.

The FLSA has a number of advisories on how to handle transportation between your home and the central office of the employer.  It’s common knowledge that transportation time to and from your workplace is not compensable under FLSA, but when you don’t have a fixed workplace how do you calculate your hours when you are going from worksite to worksite during the day as homecare workers do or are moving from place to place on assignment as part of your job? The DOL Wage and Hour Division is clear. Essentially, once you discount the “normal” travel period back and forth between you home and the central office of the employer, the rest of the hours of travel between client locations is all compensable. For years homecare companies have tried, many times successfully, to only count the hours when a worker is with the client and walk away from their obligation by assigning three or four clients to a worker’s day spread out throughout a city and making the worker eat the travel time. The same is true if a worker’s hours would normally end at a certain time, but they have been sent to the far reaches of Los Angeles County or an outlying borough of New York or a neighboring county or parish in the metro area of any city. If rather than the usual thirty minutes of travel to home, they would have to log in another 30, 60, or 90 minutes, all of that additional time is compensable, including overtime if applicable.

I don’t see too many hands up from people who are seeing these hours paid, but the examples are numerous for any workers on the move from worksite to worksite, whether formal or informal. It would seem if you don’t have a time clock, you can assume you will experience wage theft. Why isn’t there an app for that? There are apps that tell you how many steps or miles you have walked in a day or how many calories you had for lunch or where the nearest bus stop is or how long it might take a taxi to get to you, but are you telling me that there is nothing that can verify a worker’s hours adequately to be used by both an employer and the DOL to assure that a worker is paid fairly? Certainly, there must be, but as long as it’s not in the interests of the employer to use it and DOL is powerless to enforce it, wage theft seems like it is just part of the not so hidden subsidy that lower waged workers pay to keep the companies in the service economy sitting on their shoulders and swimming freely on their sweat.

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Mobilizing Home Care Workers for Higher Wages

10622925_10152156814975736_772016087576101767_nNew Orleans   Just maybe the publicity campaigns of the $15 per hour efforts by fast food and other workers are about to get serious.

Steven Greenhouse in the Times reported that SEIU is claiming that “thousands” of the several hundred thousand home health care workers represented by the union are preparing to join upcoming actions and participate in civil disobedience along with fast fooders in advancing their claims.   In and of itself this announcement doesn’t move the needle on the campaign, but what it does indicate is that the campaign might finally become very real if organizers and leaders are willing to broadly mobilize the half-million or more homecare workers under union contracts from Illinois to California, New York to Washington State and many places in between.

The unionization of these informal, precarious workers over the last thirty years has been the single crowning organizing achievement of our generation of labor organizers.  The advances these workers have achieved have been significant, going from minimum wage – or less – to better wages and finally benefits and real protections.  At the same time the gnawing problem for unionized homecare workers continues to be their relatively low wages, partially because of the complicated matching requirements of state and federal reimbursement dollars bumping up against the impacts of the Great Recession on state budgets across the country.

A major national campaign by SEIU, AFSCME, and other unions representing homecare workers willing to move contract wages across the country to $15 per hour would be huge both within the unions and in changing the way the American public sees the legitimacy of the demand.  Campaigners have done a good job of moving some of the perceptions of fast food workers from a picture of entry level teen jobs to a recognition that many older workers with families are now supporting themselves by asking if you want fries with that.  With homecare workers there is no confusion.  These are inordinately African-American, Latino, and new immigrant women hanging onto the only job many find available and doing the thankless, but vital, tasks of caring for elderly and other clients in their homes.  People may like a big Mac or a Whooper, but they love their homecare workers and depend on them for life-and-death care for their loved ones.

Real actions of homecare workers on the issue of their wages changes everything about $15 per hour.  What was fanciful, becomes real for them.  For the unions though there are risks.  Greenhouse reports grousing within SEIU that leadership have spent millions trying to see a new jurisdiction in fast food, when their own members are low paid.  Wrong whine, but fair complaint.  SEIU – and other unions – need to invest significantly in organizing new jurisdictions. And, the emperors have to wear real clothes. Recently, NYU Professor Ruth Milkman’s painful comments on the fast food campaign flatly stated that, “While that’s a very visible campaign, they have yet to organize.” Ouch, even though her words had the ring of truth.

For homecare workers and even many janitors and security workers, all of which are the heart blood of SEIU, a real fight to get $15 per hour on the job under all of their agreements would upset the symbiotic relationships with politicians, employers, and legislators that often has been the key to winning the organizing rights and the contracts in the first place.  If this first step by thousands of homecare workers triggers real movement and a real campaign among the half-million union members for higher wages finally, that’s not only a real campaign and real organizing, but finally we could have a gamechanger in moving lower waged workers up to something approaching a living wage.

 

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