For decades, companions who sit with
the elderly and infirm have been exempt from overtime and the minimum wage
under the Fair Labor Standards Act. In 2013, Obama’s Department of Labor issued
new regulations determining which companions would continue to be exempt from
the minimum wage and overtime. These new regulations exceeded what Congress had
intended when it passed the legislation, and the regulations were so complex
that young and healthy people would have struggled to determine who was exempt,
much less the elderly and infirm.
Just how bad were the new
regulations? Companions would have been limited in how many times they could
help an elderly person change their clothes. Companions would have been unable
to use a vacuum cleaner if an infirm person were to create a safety hazard by
spilling food on the floor. Companions would have been unable to prepare food
for anyone other than the elderly person they were caring for, and any food
that they did prepare would have had to have been consumed in their presence.
If these rules weren’t exactly followed, then the new regulations would have
required the companion to be paid more.
Because Medicare and Medicaid pay
for the vast majority of the care provided by companions, it could be expected
that the costs for those programs — which are already increasing rapidly —
would rise even more quickly. Furthermore, it’s quite likely that some elderly
or infirm people would be unable to pay their portion of costs for companion
care. And it’s quite likely that some sick people would have had to suffer
alone or with a reduction in needed care. Perhaps they would have had to remain
in soiled clothes for hours or have missed a meal thanks to these regulations.
And who helped the Labor Department
with planning for these absurd rules? Unions — the Service Employees
International Union (SEIU) and the Association of Federal, State, County, and
Municipal Employees (AFSCME).
In response to a Freedom of
Information Act (FOIA) request filed by Americans for Limited Government, the U.S.
Department of Labor turned over a stack of documents showing how these unions
are colluding with the Department on this subject.
On January 9, 2014, a senior SEIU
staffer emailed a 60-page memo on large home care programs likely to be
affected by the new companionship regulation to a list of senior Department of
Labor officials and other union officials from SEIU and AFSCME. Also included
was a 10-page chart summarizing the memo.
Carol Golubock (SEIU’s Policy
Director) addressed this email to Laura McClintock (Associate Deputy Secretary
of Labor), Michael Artz (AFSCME’s Associate General Counsel), Sally Tyler
(AFSCME’s Senior Health Policy Analyst), Mary Beth Maxwell (then-Deputy Chief
of Staff at the Labor Department), Patricia Smith (Solicitor for the Department
of Labor), Malvina Ford (sic)
(Senior Policy Advisor for the Administrator of the Wage and Hour Division),
Jennifer Brand (Associate
Solicitor for Fair Labor Standards),
Ryan Griffin (an attorney with James & Hoffman, who was working on an FLSA
case against McDonalds around this time period), Laura Fortman (Deputy
Administrator of the Wage and Hour Division), and Elizabeth Royal (SEIU’s
Senior Policy Coordinator).
It appears that this information had
been requested by one or more of the recipients: SEIU’s Golubock wrote, “I
didn’t imagine it would take us this long to get you this mapping of large home
care programs likely to be impacted by the new companionship rule, but
gathering and checking the information took much longer than we had
anticipated… Thank you all for your patience and hope this proves to be
helpful.”
Shortly before guidance on the new
companionship regulation was issued, Golubock set up a meeting to discuss the
issue with an employee in the Office of the Secretary of Labor. On March 5,
2014, Golubock emailed the following to Mary Beth Maxwell (who took over as
Principal Deputy Assistant Secretary for Policy that month): “Are we on for
Friday? To discuss companionship rule?” Maxwell responded, “Yes!” less than a
half-hour later.
So complex were the regulations that
the Obama Administration announced that it wouldn’t bother to enforce them for
the first six months after they were to take effect. Fortunately, the U.S
District Court for the District of Columbia blocked the regulations. However,
the case is now on appeal, and final resolution of the issue will not happen
for some time.
Richard
McCarty is Senior Research Analyst for Americans for Limited Government.
http://netrightdaily.com/2015/07/foia-reveals-unions-assisted-labor-dept-with-absurd-regulations/
Comments
Comments
Beware, enabling state laws messing with
health care.
Norb Leahy, Dunwoody GA Tea Party Leader
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