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: View From A Private Duty Caregiver Serving Carmel, Carmel Valley, Gilroy, Gonzalez, Greenfield, Hollister, King City, Marina, Monterey, Pacific Grove, Pebble Beach, Salinas, San Juan Bautista, Seaside And Soledad California Dozens of companies are suing the National Labor Relations Board (NLRB) in an effort to void or block rulings the NLRB has made under the theory that President Barack Obama's board appointments are unconstitutional. I hope they are successful. President Obama completely bypassed the Senate confirmation process and installed three NLRB Board members when legislators were on break, something which the Court of Appeals in Washington D.C. found illegal. Since the January ruling, the Board has been left without a quorum and basically in gridlock, while decisions made by the illegal appointees are now in question. In addition, many are arguing that at least 10 NLRB regional directors are illegitimate because they were appointed by the three NLRB Board members which the Court of Appeals has said aren't legal appointees. One of Obama's appointees was there for just a short time but it was long enough to create enough chaos that it could severely impact the economics of companies like Family inHome Caregiving. I wrote extensively on my blog in 2011 about how disappointed I was at about President Barack Obama's support for removing the Companionship Service Exemption for Home Care Workers, and the many problems I see with the plan. The details were included in the 186 page Department of Labor (DOL) Notice of Proposed Rulemaking (RIN 1235-AA05). I pointed out that the report makes, in my opinion, many bizarre conclusions, stating, for instance, that an exempt companion may occasionally drive the aged or infirm individual to appointments, errands and social events. It says, "There is, however, some concern that providing transportation may be more akin to the duties of a chauffeur than to the duties of a companion. The Department is mindful that drivers and chauffeurs were expressly considered by Congress as among those they intended to be covered by the act...occasional driving can be a component of incidental duties at 20%, the Department anticipates that only a limited amount of time will be spent driving the aged or infirm person to appointments, errands and social events." It then goes on to say that it's fine for an exempt companion to spend as much time as they want accompanying the aged or infirm individual to appointments, errands or social events as long as they are travelling in a taxi cab or using public transportation. We could be subject to strange rules like this, which make absolutely no sense. To assume that a 24-hour live-in Client would use their caregiver only 20% of the time for myriad services such as food preparation, laundry, placing dirty clothes in the hamper and driving while at the same time ruling that it is OK for them to spend all day long running around with the Client in taxi-cabs or on the bus is just irrational. At Family inHome Caregiving, we believe it's extremely important for our senior Clients to have good nutrition, exercise and social interaction. Therefore, we encourage them, when able, to get out and go to the park, go to the shopping mall, the beach, anywhere that will allow them to engage with other people, nature, and keep their mind active. This rule would require seniors to either stay homebound more, or hire a chauffeur or take taxis around town. Bus service is typically not a feasible option for most of our Clients, with many in rural areas and those having bus service unable to make it to the bus stop on their own. Other things in the DOL document remain in flux. For instance, the DOL asks for public comments on whether the exemption should be allowed which would let an exempt caregiver put a band-aid on a small cut. This question arises because there is a fear that caregivers could be taking work away from a skilled nurse or another professional. So is the DOL suggesting it's a good use of society's resources to have a caregiver drive a senior to urgent care when they have a tiny cut? It's a very strange question to pose. And to assume that seniors can afford to have layers of people, nurses, chauffeurs, caregivers, etc. is just not reality for most people. The new rules appear to encourage third party placement services to put a caregiver in a home and then pull out of the situation, I am not sure to what end. The DOL says that "If the individual, family, or household and the third party agency are joint employers, only the individual, family, or household is still entitled to assert the exemptions. However, regardless of whether a joint employment relationship exists, the exemptions are not available to the third party employer. All of this was put into motion by an attorney named Craig Becker, who represented a woman named Evelyn Coke. She spent 20 years as a home care aide helping the sick and elderly and later sued to collect years of overtime wages which she was not entitled to under the exemption. The case went all the way to the U.S. Supreme Court, which ruled against her in 2007 (See Coke, 551 U.S. 158), stating only Congress or the Labor Department could change the rules. In a strange twist of fate, President Obama appointed Becker in 2010 to the National Labor Relations Board. The Senate blocked his confirmation, but Obama installed him under a recess appointment which
ran out at the end of 2011. In announcing his support for changing the Exemption, Obama invoked Ms. Coke's memory so this has clearly been on his mind for some time. This is why I believe strongly in lobbying against the NLRB ruling and a state bill, AB 1217. There are special interest at work here, and they must be stopped. Both the state and federal proposals would significantly raise the cost of in-home care for seniors, while forcing us to cut back on the number of hours that we give to our caregivers. In a nutshell, our industry currently has an exemption to the overtime rules. This is due to the fact that it's not feasible to require a caregiver to take a required break or lunch, leaving the senior unattended. In addition, many of our clients require live-ins or someone sleeping over in case they need help going to the bathroom in the middle of the night. If we were subject to overtime rules, we would have to have three shifts of people coming in each day, and another shift on the weekend, for a minimum of six regular caregivers plus a couple of trained back up caregivers. Seniors do not like having people coming and going, particularly if they have Alzheimer's disease or dementia, which many of our clients do. We lobbied vigorously against the NLRB's efforts to remove our overtime exemption, but they have now recommended that it be removed now that the public comment period is over. Hopefully, trade groups will litigate this matter. The only people these rules are good for are union executives. The drive to remove our overtime exemption has been driven by unions, who are also pushing California legislation which could raise the cost of care for seniors as well as violate the privacy of our caregivers by forcing us to publicly name them on a web site. I am in Sacramento now where I plan to meet with politicians and try to convince them that the legislation which is being introduced isn't good for employees nor is it good for seniors. Wish me luck on getting AB 1217 shot down. We are in favor of another bill which would regulate our industry, AB 322 the Home Care Services Act of 2013. It's a much better alternative and was written by people in the industry, not union lawyers. http://online.wsj.com/article/SB10001424127887324034804578346700152526718.html http://www.familyinhomecaregiving.com/blog.html?entry=pacific-grove-ca-family-inhome1 http://www.familyinhomecaregiving.com/blog/index.html?entry=carmel-ca-rin-1235-aa052
About Richard Kuehn & Family inHome Caregiving: After more than a decade of caregiving, both in a professional environment and for a 97 year old family member I was dissatisfied with service from local caregiving agencies. I became convinced of the need for a service which provides very personal assistance to elderly and founded Family inHome Caregiving serving the Monterey Peninsula. Please visit my blog where I talk about important senior issues at: http://www.familyinhomecaregiving.com/Blog
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