September 2, 2025

Uploaded to: https://www.regulations.gov/docket/WHD-2025-0001

Daniel Navarrete
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor
Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210

Comments on RIN 1235-AA51: Application of the Fair Labor Standards Act to Domestic Service.

Dear Mr. Navarrete:

Getman, Sweeney & Dunn, PLLC (“GSD”) opposes the U.S. Department of Labor’s (“DOL”) proposed rule “Application of the Fair Labor Standards Act to Domestic Service” (the “Proposed Rule”). The Proposed Rule would strip millions of home care workers and other domestic workers of wage and hour protections that have been in place for over a decade. These changes, if enacted, will threaten not only the livelihood and dignity of these workers but also the health and safety of the patients who depend on them. For these reasons, we strongly oppose the deregulation of this essential workforce, and instead, support the preservation of the status quo under the current regulations.

GSD is a law firm located in Kingston, New York, that represents workers in wage and hour lawsuits around the country. The firm represents working people across the U.S. to assert their wage and hour rights, recover lost wages, curb wage theft, and encourage employers’ compliance with the law. GSD primarily represents workers in federal court because of the protections afforded under the Fair Labor Standards Act. Over the last decade, GSD has recovered over tens of millions of dollars in unpaid wages for thousands of home care workers (home health aides, personal care aides, and others) and is currently litigating multiple cases for home care agencies’ failure to pay overtime wages.

Home Care Worker Conditions

Home care workers perform valuable and skilled labor, often under strenuous conditions for low pay and long hours. Their work is physically demanding and emotionally taxing. They care for individuals who require assistance with essential activities of daily living, such as bathing, dressing, toileting, walking and changing positions, eating and grooming. Many of the patients they attend to suffer from a wide range of serious medical conditions impacting their ability to live independently. This skilled, labor-intensive work merits at least minimum wages and overtime pay for hours worked over 40 in a workweek. Below is an incomplete list of reasons home care workers deserve fair pay and protection under the FLSA:

• In addition to assisting with activities of daily living, home care workers are often required to routinely prepare meals, clean the patients’ homes, and accompany their patients to doctors’ visits. Those who are certified as home health aides also monitor vital signs, and change catheters and urine bags. For patients who are confined to bed, aides are often required to lift and re-position them, many of whom are significantly heavier than themselves, risking injury to prevent falls and other accidents.

• Home care workers’ labor ensures patients’ safety, health, and well-being, and allows seniors and people with disabilities to remain in their homes. Their work is vital to preserving patients’ independence and avoiding institutionalization. Home care workers keep families together.

• Even though the law requires that home care agencies ensure adequate sleeping facilities, many home care workers are provided substandard and inadequate sleeping quarters. Some must sleep on stiff or worn sofas or even chairs that are just a few steps away from their patients. And even though these home care workers are awake for much of the night tending to their patients, the agencies illegally pay them for 13 hours out of the 24 that they worked.

• Many home care aides care for patients who are a fall risk. For many, it is their job to assist patients any time they stand or ambulate or transfer from a bed to a chair. Many patients weigh more than their assigned home care worker. Thus, at the risk of bodily injury, the home care worker must physically support her patient.

• Some patients have incontinence and require toileting assistance multiple times a night. The home care workers must be ready to assist their patients at a moment’s notice. Often, home care workers must wake up every two to three hours to aid their clients with standing, mobility, or toileting throughout the night. Patients’ plans of care frequently require the home care workers to reposition their patients every two hours, thus, denying the workers adequate and restorative sleep free from work.

• Other home care workers may work with patients with Alzheimer’s or dementia who sleep during the day and not at night. One home care worker was told by her employer that she had to adjust her sleep hours to that schedule to prevent the patient from wandering out of her home unattended. A different worker once worked five 24-hour shifts in a row because she was ordered to by her employer, and the household had no groceries or food to eat. She was told by her employer to “go buy some food,” but she was not permitted to leave the patient.

Home care workers are some of the lowest paid workers in the United States and earn a median pay of $34,900 per year, despite the demanding nature of the work. Because of their low pay, many home care workers seek to work as many hours and pick up as many shifts as they can to support themselves and their families and meet their basic needs. Due to potentially decreased earnings, it will likely force them to work even more hours to make the same amount when they were paid overtime wages. Should the DOL seek to deny them minimum and overtime wages, home care workers will continue to suffer as some of the lowest paid workers in the country. This will have a negative impact on their families and reduce their minimum standard of living necessary for health, efficiency, and general well-being, which is contrary to the goals of the Fair Labor Standards Act. 29 U.S.C. § 202(a).

Home Care Workers Will Be Forced to Leave the Industry

Home care workers are essential workers, and the backbone of the home care labor pool. The Proposed Rule would likely lead to an exodus of workers from this industry, which is already marked by high turnover. Low wages are a key part of this dissatisfaction. One study found that the odds of a home health aide intending to leave their position fell by 15% with each additional dollar in hourly wages, and each additional dollar in wages increased the odds of being satisfied with the job by 46%.

The DOL should not have any illusions about the negative effect of the Proposed Rule; if enacted, it will result in an untenable pay cut and significant ramifications in the industry. The DOL justifies the Proposed Rules in part by noting that growth in the home health aide workforce has “slowed” since 2013. But the DOL is still acknowledging growth in that labor pool. A pay cut will lead to a reduction in this workforce. The slow growth is likely due to still-low wages in the industry. Lowering the wages further will have a negative impact on the growth of this workforce.

The Proposed Rule also cites a Government Accountability Office study for the proposition that earnings for home care workers “did not significantly increase” following implementation of RIN 1235-AA05 (the “2013 Rule”). The study notes, however, that between 2010 and 2019, the median weekly earnings of home health aides increased from $352 to $400, adjusted for inflation, which is an increase of 13.6%. Full time work increased 11%, almost double that of occupations with similar entry requirements. Both the 2013 Rule and state minimum wage increases have been associated with higher wages among newly hired home care workers.

Demand for Home Care Is Growing

There has never been greater demand for home care, and the demand is only set to grow. Between 2010 and 2020, the population of people 65 years and older saw the largest growth in over a century, at a rate five times faster than the rest of the population. That population is expected to continue to grow another 22% by 2040. If the DOL would like to see growth in the home care worker labor pool to meet this demand, it should reconsider its Proposed Rule and preserve the status quo.

As the 2013 Rule acknowledged, the industry has undergone dramatic transformation since the 1970s, when the companionship services exemption was applied. Those with significant care needs were predominantly served in institutional settings, and now many more people receive care in their homes. Providing care to a patient at home costs less than residential facility care. Home care workers are not the “elder sitters” that Congress envisioned when it enacted the exemption in 1974. This work has become increasingly less casual, and it requires a deep level of skill and expertise. Federal regulations require home care workers to complete mandatory training, competency evaluations, and continued education, and many states have expanded upon those requirements. As the 2013 Rule recognized, the work performed by these workers is not akin to “babysitting,” or performed “on a casual basis.”

Conclusion

GSD strongly opposes the Proposed Rule. The DOL should not deregulate the home care industry by rescinding the 2013 Rule. Home care workers deserve a living wage and should not be stripped of their basic minimum wage and overtime protections or forced to live at or further below the poverty line. They work long hours, performing skilled and difficult labor for a population of highly vulnerable people. The Proposed Rule threatens these workers’ livelihood and the health and safety of the elderly and patients with disabilities who depend on them. The DOL should take seriously these negative ramifications on the home care workforce at a time of exploding need. GSD supports the preservation of the status quo under the current regulations.

Sincerely,

Matt Dunn