Aging and caring in the home: Regulating paid domesticity in the twenty-first century

Iowa Law Review

Volumn 92, Issue 5, 2007, Pages 1835-1900

  Smith, Peggie R ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 34948878161     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (506)

1. Evelinn A. Borrayo et al., Who Is Being Served? Program Eligibility and Home-and Community-Based Services Use, 23 J. APPLIED GERONTOLOGY 120, 120 (2004) ("The majority of older adults in the United States reside in the community, and when faced with deteriorating health status and functional ability, they overwhelmingly prefer to avoid institutionalization and remain at home.");
2. Robyn I. Stone, The Direct Care Worker: The Third Rail of Home Care Policy, 25 ANN. REV. PUB. HEALTH 521, 521 (2004) ("National polls indicate that older adults and younger people with disabilities want to remain in their own homes in their own communities for as long as possible.");
3. see also Vera Prosper, Aging in Place in Multifamily Housing, 7 CITYSCAPE;
4. J. POL'Y DEV. & RES. 81, 82 (2004) (commenting that "most older people prefer to remain living where they are and to age in place").
5. For a discussion on the definition of long-term care, see Karen Bogenschneider, Has Family Policy Come of Age? A Decade Review of the State of U.S. Family Policy in the 1990s, 62 J. MARRIAGE & FAM. 1136, 1145 (2000) ("Long-term care includes a broad range of services given over a sustained period to the disabled or the frail elderly whose disability results in longterm difficulties in functioning.");
6. infra note 35 and accompanying text (highlighting the types of activities involved in providing long-term care to the elderly).
7. The baby-boom generation began in the aftermath of the Second World War and includes those individuals born between 1946 and 1964. See JAMES T. PATTERSON, GRAND EXPECTATIONS: THE UNITED STATES, 1945-1974, at 77 (1997) (describing the increase in birth rates that started in 1946 and leveled off in 1964). At 76 million strong, the baby-boom generation is the largest population mass in U.S. history. Id.
8. Daniel E. Hecker, Occupational Employment Projections to 2014, MONTHLY LAB. REV. 70, 74-75 (2005) (reporting a fifty-six-percent projected growth rate for home-health aides between 2004 and 2014, and reporting a forty-one-percent projected growth rate for personal aides and home-care aides);
9. iee also BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK, TOMORROW'S JOBS 5 (2003), available at http://www.bls.gov/oco/pdf/oco2003.pdf (listing home-health aide as the occupation that is expected to grow the fastest between 2004 and 2014);
10. WILLIAM J. SCANLON, U.S. GEN. ACCOUNTING OFFICE, NURSING WORKFORCE: RECRUITMENT AND RETENTION OF NURSES AND NURSE AIDES IS A GROWING CONCERN, PREPARED TESTIMONY BEFORE THE SENATE COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 20 (May 17, 2001) [hereinafter NURSING WORKFORCE], available at http://www.gao.gov/new.items/d01750t. pdf (reporting that from 1988 to 1998, the greatest growth in the workforce "was among aides working in home care, with their numbers more than doubling").
11. See Linda Delp & Katie Quan, Homecare Worker Organizing in California: An Analysis of a Successful Strategy, 27 LAB. STUD. J. 1, 3 (2002);
12. U.S. GEN. ACCOUNTING OFFICE, LONG-TERM CARE: SOME STATES APPLY CRIMINAL BACKGROUND CHECKS TO HOME CARE WORKERS 2 (1996) [hereinafter LONG-TERM CARE], available at http://www.gao.gov/archive/1996/pe96005.pdf. Other terms that are used to refer to the same types of services include personal attendant and personal-care attendant. See, e.g., Delp Sc Quan, supra, at 3 ("Homecare workers are personal attendants who provide assistance to frail elderly and disabled people in their homes.").
13. A. E. Benjamin, Consumer-Directed Services at Home: A New Model for Persons with Disabilities, 20 HEALTH AFF. 80, 80 (2001) (reporting that a majority of long-term care recipients are elderly individuals who receive care primarily in their homes) ;
14. LONG-TERM CARE, supra note 4, at 4 (noting that the typical home-care recipient is "a woman with functional limitations who is very elderly, has a low income, and lives alone");
15. NAT'L ASS'N FOR HOME CARE & HOSPICE, BASIC STATISTICS ABOUT HOME CARE 8 (2004), available at http://www.nahc.org/ 04HC_Stats.pdf (reporting that in 2000, 69.1 percent of home-care recipients were over age sixty-five). Although this Article focuses on home care as it relates to the elderly, home-care consumers are more diverse and also include "children and young adults with disabilities" and "people with a wide range of conditions such as birth defects, developmental disabilities, mental illness, AIDS, Alzheimer's disease, spinal cord injury, stroke, muscular degeneration, broken bones, surgical recovery, or accident victims." U.S. Dep't of Labor, Report of the Working Group on Long-Term Care (Nov. 14, 2000), http://www.dol.gov/ebsa/publications/report2.htm.
16. LONG-TERM CARE, supra note 4, at 2 (commenting that "70 to 80 percent of all paid long-term home care is provided by workers variously known as home health aides, personal care aides, personal care attendants, or homemakers").
17. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK, NURSING, PSYCHIATRIC, AND HOME HEALTH AIDES 351 (2006) [hereinafter NURSING], available at http://www.bls.gov/oco/pdf/ocos165.pdf (stating that "home health aides help elderly, convalescent, or disabled persons live in their own homes instead of in a health care facility" and that "[u]nder the direction of nursing or medical staff, they provide health-related services, such as administering oral medications").
18. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK, PERSONAL AND HOME CARE AIDES 399 (2006) [hereinafter PERSONAL AND HOME CARE AIDES], available at http://www.bls.gov/oco/pdf/ ocos173.pdf ("Personal and home care aides help elderly, disabled, ill, and mentally disabled persons live in their own homes or in residential care facilities instead of in health facilities.").
19. Id.
20. See Judith Feder, Paying for Home Care: The Limits of Current Programs, in FINANCING HOME CARE: IMPROVING PROTECTION FOR DISABLED ELDERLY PEOPLE 27, 27-44 (Diane Rowland & Barbara Lyons eds., 1991) (overviewing public and private expenditures on home care and noting their limitations);
21. Richard L. Kaplan, Cracking the Conundrum: Toward a Rational Financing of Long-Term Care, 2004 U. ILL. L. REV. 47, 62-64 (highlighting the limitations of Medicare in addressing the long-term care needs of older Americans);
22. id. at 69-72 (noting structural features in Medicaid that limit its ability to fund long-term care); see also KATHRYN G. ALLEN, U.S. GOV'T ACCOUNTABILITY OFFICE, LONG-TERM CARE FINANCING: GROWING DEMAND AND COST OF SERVICES ARE STRAINING FEDERAL AND STATE BUDGETS, PREPARED TESTIMONY BEFORE THE SUBCOMMITTEE ON HEALTH OF THE HOUSE COMMITTEE ON ENERGY AND COMMERCE 7-11 (2005) [hereinafter LONG-TERM CARE FINANCING], available at http://www.gao.gov/new. items/d05564t.pdf (highlighting the consequences of inadequate funding for long-term care on elderly individuals). Various scholars have examined the potential of long-term care insurance as a means to finance the health-care needs of the elderly.
23. See, e.g., Marc A. Cohen, Private Long-Term Care Insurance: A Look Ahead, 15 J. AGING & HEALTH 74, 75-76 (2003);
24. Richard L. Kaplan, Crowding Out: Estate Tax Reform and the Elder Law Policy Agenda, 10 ELDER L.J. 15, 29-34 (2002);
25. William J, Arnone, Long-Term Care Insurance: A Benefit for the Future, COMPENSATION & BENEFITS REV., Oct. 1988, at 47, 50-51;
26. Robert R. Pohls, Long Term Care Insurance, BRIEF, Fall 2002, at 28.
27. See generally U.S. GEN. ACCOUNTABILITY OFFICE, LONG-TERM CARE INSURANCE: FEDERAL PROGRAM HAS A UNIQUE PROFIT STRUCTURE AND, FACED A SIGNIFICANT MARKETING CHALLENGE (2006), available at http://www.gao.gov/new.items/d07202.pdf (discussing the Federal Long Term Care Insurance Program which was mandated by the Long-Term Care Security Act) ;
28. RICHARD W. JOHNSON & CORI E. UCCELLO, IS PRIVATE LONG-TERM CARE INSURANCE THE ANSWER? (Ctr. for Retirement Research at Boston Coll., Issue Brief No. 29, 2005), available at http://www.bc.edu/centers/crr/issues/ ib_29.pdf (describing private long-term care insurance and examining some of the advantages and disadvantages of coverage);
29. Yung-Ping Chen, Funding Long-Term Care: Applications of the Trade-Off Principle in Both Public and Private Sectors, 15 J. AGING HEALTH 15 (2003) (developing a long-term care funding model that relies on social insurance to protect the elderly);
30. Joshua M. Wiener et al., Federal and State Initiatives to Jump Start the Market for Private Long-Term Care Insurance, 8 ELDER L.J. 57 (2000) (examining state and federal initiatives to bolster private long-term care insurance).
31. See supra note 3 and accompanying text (describing the expected growth of home-care workers).
32. H. Stephen Kaye et al., The Personal Assistance Workforce: Trends In Supply and Demand, 25 HEALTH AFF. 1113, 1113-14 (2006) (observing that "low wages, scarce health benefits, and irregular work schedules" make it "problematic to attract and retain qualified workers");
33. Ron Osterhout & Rick Zawadski, On Homecare Workforce, 64 POL'Y & PRAC. PUB. HUM. SERVICES, Mar. 2006, at 30, 30 (stating that "homecare workers have traditionally been paid low wages and received few benefits");
34. see also infra notes 59-68 and accompanying text (discussing the working conditions in home care).
35. Rhonda J.V. Montgomery et al., A Profile of Home Care Workers From the 2000 Census: How It Changes What We Know, 45 GERONTOLOGIST 593, 595 (2005) (reporting that ninety percent of all home-care workers are women).
36. "Domestic service" refers to household tasks, such as cleaning, shopping, cooking, and childcare, performed by workers for pay within private homes. Gabrielle Meagher, Recreating "Domestic Service": Institutional Cultures and the Evolution of Paid Household Work, FEMINIST ECON., Jul. 1997, at 23, 23 n.1. Domestic service is also referred to as "paid household work." Id.
37. For a comparison between domestic service and home care, see generally Evelyn Nakano Glenn, From Servitude to Service Work: Historical Continuities in the Racial Division of Paid Reproductive Labor, 18 SIGNS 1 (1992) (examining the historical transformations in domestic service from work performed mainly within the private setting to work performed within public settings including the care of the elderly in institutions);
38. Sheila M. Neysmith & Jane Aronson, Working Conditions in Home Care: Negotiating Race and Class Boundaries in Gendered Work, 27 INT'L J. HEALTH SERVICES 479, 482 (1997) (commenting on the parallels between domestic service and home care);
39. Charlene Tung, The Cost of Caring: The Social Reproductive Labor of Filipina Live-in Home Health Caregivers, FRONTIERS: J. WOMEN STUD., No. 1/2, 2000, at 61, 65-66 (exploring the links between women's domestic work within the home, both paid and unpaid, and the status of Filipina home-care workers in California).
40. For historical analyses of domestic service, see generally DAVID M. KATZMAN, SEVEN DAYS A WEEK: WOMEN AND DOMESTIC SERVICE IN INDUSTRIALIZING AMERICA (1978), which studies domestic service and its particular implications for African Americans from the Civil War to World War I, and LUCY MAYNARD SALMON, DOMESTIC SERVICE (2d ed. 1901), which examines the historical development of the domestic service industry and discusses its future in an increasingly industrial world. For contemporary accounts, see generally PIERRETTE HONDAGNEU-SOTELO, DOMÉSTICA: IMMIGRANT WORKERS CLEANING AND CARING IN THE SHADOWS OF AFFLUENCE (2001), which examines the role of race and immigrant status in the structure of domestic work, and RHACEL SALAZAR PARAÑAS, SERVANTS OF GLOBALIZATION: WOMEN, MIGRATION, AND DOMESTIC WORK (2001), which studies migrant Filipina domestic workers who leave their families behind to work as domestics in Rome and Los Angeles.
41. Long-Term Care and Medicaid: Hearing Before the Subcomm. on Health of the H. Comm. on Energy and Commerce, 109th Cong. 140-67 (2005) (statement of Judith Feder, Dean, Public Policy Institute, Georgetown University);
42. Diane Rowland & Barbara Lyons, The Elderly Population in Need of Home Care, in FINANCING HOME CARE: IMPROVING PROTECTION FOR DISABLED ELDERLY PEOPLE 3, 7-13 (Diane Rowland & Barbara Lyons eds., 1991) (providing statistics that demonstrate that the disabled elderly population in need of home care comes from all socioeconomic backgrounds, including the "non-poor");
43. see also NAT'L CTR. FOR HEALTH STATISTICS, U.S. DEP'T OF HEALTH & HUMAN SERVS., NATIONAL HOME AND HOSPICE CARE SURVEY 4 tbl. 4 (2000), available at http://www.cdc.gov/nchs/data/nhhcsd/curhomecare00.pdf (demonstrating the diversity of home health-care recipients in terms of age, gender, race, ethnicity, marital status, and sources of home health-care payment).
44. Meris L. Bergquist, Home Health Care: What Is It and Who Pays For It?, VT. B.J. & L. DIG., Dec. 1991, at 35, 35 (stating that "Medicare is the largest source of public funding for home health care" (internal citations omitted));
45. Anna U. Loengard & Jeremy Boal, Home Care of the Frail Elderly, 20 CLINICS GERIATRIC MED. 795, 797 (2004) (reporting that "[i]n 2000, home health agencies derived their payments from Medicare (28%), Medicaid (18%), private insurance (18.5%), out-of-pocket (24.4%), and other sources (5.2%)" (internal citations omitted));
46. LONG-TERM CARE, supra note 4, at 3 (observing that "the broadest federal programs for supporting [home-care] services" are Medicare and Medicaid).
47. See generally Feder, supra note 10, at 30-44 (discussing public programs that finance home care).
48. See infra notes 137-54 and accompanying text (describing third-party home-care employment relationships).
49. Labor and employment law developed with the advent of the industrial revolution as workers increasingly left behind agrarian settings and migrated towards manufacturing jobs. See generally WILLIAM FORBATH, LAW AND THE SHAPING OF THE AMERICAN LABOR MOVEMENT (1991) (examining the history of early American labor law).
50. See generally MARY C. TUOMINEN, WE ARE NOT BABYSITTERS: FAMILY CHILD CARE PROVIDERS REDEFINE WORK AND CARE (2003) (analyzing family child care from the perspective of providers) ;
51. Peggie R. Smith, Welfare, Child Care, and the People Who Care: Union Representation of Family Child Care Providers, 55 KAN. L. REV. 321 (2007) (examining the status of family child-care providers in labor law);
52. Dawn R. Swink, Telecommuter Law: A New Frontier in Legal Liability, 38 AM. BUS. L.J. 857, 859 (2001) ("People such as sales representatives, artists, writers, seamstresses, doctors, and lawyers have been working out of their homes for years.").
53. For a discussion of OSHA'S approach to telecommuting employees who work in home offices, see infra Part V.B.
54. See supra note 3 and accompanying text (documenting the expected growth in home care). Various commentators have written incisively about the challenges to employment and labor law posed by the transformations in workplace relations over the past few decades.
55. See generally Stephen F. Befort, Revisiting the Black Hole of Workplace Regulation: A Historical and Comparative Perspective of Contingent Work, 24 BERKELEY J. EMP. & LAB. L. 153 (2003) (discussing the implications of a growing contingent workforce for labor and employment law) ;
56. Kenneth G. Dau-Schmidt, Meeting the Demands of Workers into the Twenty-First Century: The Future of Labor and Employment Law, 68 IND. L.J. 685 (1993) (exploring the future of labor and employment law and providing a historical account of how the law has changed over time);
57. Katherine V.W. Stone, The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law, 48 UCLA L. REV. 519 (2001) (describing how changes in the world of work created a "new psychological contract");
58. Elena N. Broder, Note, (Net)Workers' Rights: The NLRA and Employee Electronic Communications, 105 YALE L.J. 1639 (1996) (discussing the effect of labor laws on telecommuters).
59. Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19 (2000).
60. Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 (2000).
61. See infra note 180 and accompanying text (highlighting opposition to efforts to apply the FLSA to third-party home-care workers).
62. See infra Part V (examining the treatment of home-care workers under the OSH Act).
63. See Melissa B. Jacoby, Teresa A. Sullivan & Elizabeth Warren, Rethinking the Debates over Health Care Financing: Evidence from the Bankruptcy Courts, 76 N.Y.U. L. REV. 375, 377 (2001) (concluding that many middle-class families go bankrupt each year because of spending prompted by medical problems, including those of the elderly) ;
64. Kenneth Hubbard, Note, The Medicaid Cost Crisis: Are There Solutions to the Financial Problems Facing Middle-Class Americans Who Require Long-Term Health Care?, 43 CLEV. ST. L. REV. 627, 628-29 (1995) (reporting on a survey which indicates that "providing out-of-pocket long-term care for a family member would be 'financially devastating' for ninety percent of middle-class families"). A subject of ongoing controversy concerns middle-class elderly individuals who become impoverished as a result of spending down their assets in order to qualify for Medicaid funds to help defray the cost of long-term care.
65. See, e.g., Mark A. Rothstein, Health Care: Public and Private Systems in the Americas, 17 COMP. LAB. L.J. 612, 617 (1996) (observing that "middle class elderly people often attempt to qualify for [Medicaid] by 'spending down' their assets until they become indigent");
66. Jeffrey L. Soltermann, Medicaid and the Middle Class: Should the Government Pay for Everyone's Long-Term Health Care?, 1 ELDER L.J. 251, 251 (1993) (observing that Medicaid, while designed as a welfare program for the poor, has become an insurance program for the elderly middle class).
67. See generally U.S. GEN. ACCOUNTABILITY OFFICE, MEDICAID: TRANSFERS OF ASSETS BY ELDERLY INDIVIDUALS TO OBTAIN LONG-TERM CARE COVERAGE (2005), available at http://www.gao.gov/new.items/d05968.pdf.
68. See, e.g., Colleen M. Grogan & Eric M. Patashnik, Universalism Within Targeting: Nursing Home Care, the Middle Class, and the Politics of the Medicaid Program, 2003 SOC. SERVICES REV. 51, 58-60 (noting the shift in media discussions regarding whether Medicaid should be an entitlement solely for poor and low-income individuals or a universal entitlement) ;
69. Steven C. Wolf, How Long-Term Care Should Be Financed: The Nuts and Bolts of a Workable Public/Private Partnership, NURSING HOMES/LONG TERM CARE MGMT., Mar. 2006, at 64, 64 (discussing the arguments and financial concerns related to public and private responsibility for long-term care).
70. See OFFICE OF THE ASSISTANT SEC'Y FOR PLANNING & EVALUATION, U.S. DEP'T OF HEALTH & HUMAN SERVS., THE FUTURE SUPPLY OF LONG-TERM CARE WORKERS IN RELATION TO THE AGING BABY BOOM GENERATION: REPORT TO CONGRESS 4 (2003) [hereinafter FUTURE SUPPLY], available at http://aspe.hhs.gov/daltcp/reports/ltcwork.pdf.
71. WAN HE ET AL., U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, 65+ IN THE UNITED STATES: 2005, at 1 (2005), available at http://www.census.gov/ prod/2006pubs/p23-209.pdf.
72. Id.
73. Id.
74. See supra note 2;
75. see also FUTURE SUPPLY, supra note 27, at 7-8.
76. HE ET AL., supra note 28, at 1-2, The population growth of elderly Americans has been the most pronounced among individuals age eighty-five and older. This segment of the elderly population, which is the fastest growing, included 4,7 million people in 2003. It is expected to double to 9.6 million in 2030, and to double yet again to 20.9 million in 2050, the point at which all of the remaining boomers will be age eighty-five and older. Id. at 6.
77. See U.S. GEN. ACCOUNTING OFFICE, LONG-TERM CARE: AGING BABY BOOM GENERATION WILL INCREASE DEMAND AND BURDEN ON FEDERAL AND STATE BUDGETS 3 (2002), available at http://www.gao.gov/new.items/d02544t.pdf (highlighting medical conditions among the elderly that have led to an increase in demand for long-term care services).
78. Kaye et al., supra note 12, at 1115;
79. Peggie R. Smith, Elder Care, Gender, and Work: The Work-Family Issue of the 21st Century, 25 BERKELEY J. EMP. & LAB. L. 351, 356-57 (2004);
80. FUTURE SUPPLY, supra note 27, at 3-5.
81. HE ET AL., supra note 28, at 58 (distinguishing between activities of daily living which include personal-care tasks such as bathing, eating, toileting, and dressing, and instrumental activities which include "household management tasks like preparing one's own meals, doing light housework, managing one's own money, using the telephone, and shopping for personal items").
82. See ROBYN I. STONE, LONG-TERM CARE FOR THE ELDERLY WITH DISABILITIES: CURRENT POLICY, EMERGING TRENDS, AND IMPLICATIONS FOR THE TWENTY-FIRST CENTURY 8-9 (2000), available at http://www.futureofaging.org/PublicationFiles/ LongTermCare_Mech5%5B1 %5D. pdf;
83. Kaye et al., supra note 12, at 1113;
84. Smith, supra note 34, at 360.
85. NGA CTR. FOR BEST PRACTICES, NAT'L GOVERNORS ASS'N, STATE SUPPORT FOR FAMILY CAREGIVERS AND PAID HOME-C ARE WORKERS 5 (2004), available at http://www.nga.org/ Files/pdf/0406AgingCaregivers.pdf ("Twenty-eight percent of community-based elders receive assistance from both family and paid in-home workers, and 8 percent of elders receive care solely from paid in-home workers.").
86. See LONG-TERM CARE, supra note 4, at 4 (connecting the increased reliance on home care with projections "indicat[ing] that labor force participation will continue to increase among women, who have traditionally provided much of the informal care for the elderly").
87. See Steven J. Katz et al., Gender Disparities in the Receipt of Home Care for Elderly People with Disability in the United States, 284 JAMA: J. AM. MED. ASS'N 3022, 3022 (2000) ("[C]hanges in the pattern of living arrangements will increase the number of elderly people living alone and thus reduce the availability of informal care.");
88. Diane Rowland, Measuring the Elderly's Need for Home Care, HEALTH AFF., Winter 1989, at 40, 48 ("[M]ore than one in four elderly people with multiple impairments live alone. For this group, the absence of a resident caregiver is likely to result in a greater need for formal home care services.");
89. iee also LONG-TERM CARE FINANCING, supra note 10, at 13. One scholar noted: [I]n coming decades, fewer elderly may have the option of unpaid care because a smaller proportion may have a spouse, adult child, or sibling to provide it. By 2020, the number of elderly who will be living alone with no living children or siblings is estimated to reach 1.2 million, almost twice die number without family support in 1990. Id.
90. Smith, supra note 34, at 367-68 (citing Press Release, Nat'l Council on Aging, Nearly 7 Million Long-Distance Caregivers Make Work and Personal Sacrifices (Mar. 12, 1997), available at http://www.ncoa.org/ content.cfm?sectionID=104&detail-49);
91. see also Kaye et al., supra note 12, at 1113 ("People who live alone or who have high levels of assistance needs are the most likely to receive paid help.");
92. LONG-TERM CARE FINANCING, supra note 10, at 13 ("[G]eographic dispersion of families may further reduce the number of unpaid caregivers available to elderly baby boomers.").
93. Smith, supra note 34, at 360-61 (discussing the gendered dimension of elder care as it relates to elderly women who have outlived their husbands).
94. AMARA BACHU & MARTIN O'CONNELL, U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, CURRENT POPULATION REPORT No. P20-543RV, FERTILITY OF AMERICAN WOMEN: JUNE 2000, at 1 (2001), available at, http://www.census.gov/prod/2001pubs/p20-543rv.pdf (reporting that in 2000, childlessness among women aged forty to forty-four years was nineteen percent, "almost twice as high as among women who were of the same age in 1980 (10 percent)");
95. see also LONG-TERM CARE, supra note 4, at 4 ("Among those in need of home care, reliance on paid home-care workers is also expected to rise, partly because adults in the baby boom generation have had smaller numbers of children and will therefore have fewer available to provide or supervise their care in old age.").
96. FUTURE SUPPLY, supra note 27, at 22 ("Home health, personal care and home care aides represent the majority, approximately 67 percent . . . of the long-term care direct care workers in the community (residential care and home health care settings).").
97. Stone, supra note 1, at 521.
98. The 1,325,000 figure reflects the approximate combined totals for home-health aides and personal and home-care aides. Hecker, supra note 3, at 75 (reporting that 624,000 home-health aides were employed in 2004, and that 701,000 personal and home-care aides were employed in 2004).
99. See STEVE DAWSON & RICK SURPIN, DIRECT CARE HEALTH WORKERS: THE UNNECESSARY CRISIS IN LONG-TERM CARE 12 (2001), available at http://www.directcareclearinghouse. org/download/Aspen.pdf ("[B]eneath the formal sector lies a gray-market workforce of paid caregivers who are hired directly by consumers, but whose income is not reported. The size of this unreported workforce is significant but unquantifiable.");
100. ROBYN STONE, LONG-TERM CARE WORKFORCE SHORTAGES: IMPACT ON FAMILIES 2 (2001), available at http://www.bjbc.org/content/docs/ LTC_Workforce_Shortages.pdf (noting that "many home care workers are hired privately and official federal statistics may not include them"). The U.S. Department of Health and Human Services stated: [D]irect caregivers who operate as independent contractors and who are not reimbursed by government programs are sometimes paid in cash. Moreover, although required by law, employers often do not pay taxes for these individuals. As a result, there is little information on the size and trends in what is sometimes referred to as the 'gray market,' direct care workers in a quasi underground economy.
101. FUTURE SUPPLY, supra note 27, at 12;
102. see also DEP'T OF HEALTH & HUMAN SERVS., NURSING AIDES, HOME HEALTH AIDES, AND RELATED HEALTH CARE OCCUPATIONS-NATIONAL AND LOCAL WORKFORCE SHORTAGES AND ASSOCIATED DATA NEEDS 9 (2004) [hereinafter HOME HEALTH AIDES], available at http://www.directcareclearinghouse.org/download/RNandHomeAides.pdf (observing that there is "a sizable gray market of direct care work[ers] who consumers hire directly").
103. STONE, supra note 46, at 2;
104. see also HOME HEALTH AIDES, supra note 46, at 9.
105. See supra note 3 (referencing sources that document the growing numbers of home-care workers).
106. See, e.g., HOME HEALTH AIDES, supra note 46, at iv ("[T]he supply of these individuals, while continuing to grow, has been slipping relative to demand, a situation likely to continue well into the future.");
107. id. at v (questioning "whether the Nation will have an adequate supply of workers in these occupations to meet the expected increase in demand");
108. Melanie Evans, Home-Care Demands Rise, MODERN HEALTHCARE, July 17, 2006, at 17, 17 ("[H]ome care's low wages, poor benefits and steady turnover - plus a lack of certification to ensure quality - indicate an ongoing struggle to guarantee enough qualified workers to meet the growing demand.").
109. STONE, supra note 46, at 1 ("[M]any policymakers, providers, consumers and researchers currently use the term 'crisis' to describe the problems with attracting and retaining workers.");
110. James Cooper Sc Diane Cooper, Crisis in Workforce Supply-Read All About It!, 13 ANNALS LONG-TERM CARE 23, 23 (2005) ("It's widely asserted that there is a crisis, or at least an impending crisis, in the workforce supply for aged long-term care.");
111. Susan Harmuth, The Direct Care Workforce Crisis in Long-Term Care, 63 N.C MED. J. 87, 93 (2002) (stating that the "crisis is already here and, in the absence of appropriate and effective action, shortages will only get worse").
112. PARAPROFESSIONAL HEALTHCARE INST., TRAINING QUALITY HOME CARE WORKERS 3 (2003), available at http://www.paraprofessional.org/publications/ PHI_Training_Overview.pdf. While researchers agree that turnover in home care is a major problem, estimates of the problem vary.
113. See, e.g., DAWSON & SURPIN, supra note 46, at 1 (reporting that turnover rates among direct-care workers "range between 40 and 100 percent annually");
114. CAROL RAPHAEL, ACADEMYHEALTH, LONG-TERM CARE: CONFRONTING TODAY'S PROBLEMS 1 (2003), available at http://www.academyhealth.org/ publications/ltcchallenges.pdf (reporting a twenty-eight percent turnover rate for home-health aides).
115. See HOME HEALTH AIDES, supra note 46, at v ("In areas where levels of service have been reduced, elderly or chronically ill persons deprived of access to care must either remain in more restrictive, more costly environments . . . or seek care from family or friends.");
116. STONE, supra note 46, at 6 (observing that short staffing in home care causes workers to make shorter and less frequent visits and, as a result, they are able to devote less time to care-giving tasks). As Stone observes: Because of the important role that workers play in meeting the most basic needs of [long-term care] users and the close personal relationships that are frequently established between the aide and the care recipient, the reduced availability and frequent churning of such personnel may ultimately affect the physical and mental functioning of the client. Several studies have observed that inadequate staffing levels, an inevitable byproduct of a worker shortage, are associated with poorer nutrition and preventable hospitalizations among nursing home residents. Reduced quality of and access to care will have negative consequences for family caregivers too, placing more physical and emotional burden on them.
117. Id. (internal citations omitted); iee also PARAPROFESSIONAL HEALTHCARE INST., supra note 51, at 6 (observing that "[c]onstant turnover is undermining [the] quality of care"). High turnover rates and a shortage of home-care personnel can also lead to financial losses in the industry.
118. STONE, supra note 46, at 6 (highlighting the industry costs associated with worker turnover);
119. Stone, supra note 1, at 524 (noting the high cost of replacing workers).
120. STONE, supra note 46, at 6.
121. Osterhout & Zawadski, supra note 12, at 30 (noting that turnover among home-care workers "is a significant national problem" that compromises the quality of care and leads to a greater likelihood that clients may be institutionalized).
122. Montgomery et al., supra note 13, at 595-97.
123. DAWSON & SURPIN, supra note 46, at 12 (commenting that the "typical direct-care worker is a low-income woman, between the ages of 25 and 54, who is a single mother");
124. Cooper & Cooper, supra note 50, at 24 (2005). Cooper and Cooper stated: [T]he typical paid direct-care worker . . . is a single mother aged 25-54. Compared to other jobs, she is more likely to be nonwhite. Only 10-20% of direct care workers are male. Home care aides tend to be older than aides in other settings, and less likely to be native-born U.S. citizens. Id.;
125. STONE, supra note 46, at 2 ("Compared to the workforce in general, nursing home and home health care aides are more likely to be non-white, unmarried and with children under age 18 at home.");
126. NURSING WORKFORCE, supra note 3, at 22 ("Aides working in nursing homes and home care are much more likely than other workers to be uninsured, living below the poverty level, and receiving public benefits . . . . [They] are also two to three times more likely as other workers to be unmarried and have children at home.").
127. DAWSON & SURPIN, supra note 46, at 12 (observing that "86 percent of [direct-care workers] . . . are women, 30 percent are women of color") ; Montgomery et al., supra note 13, at 595 (commenting that "the home care industry tends to have somewhat fewer African American workers and proportionally more Hispanic or Latino workers").
128. Montgomery et al., supra note 13, at 595. Montgomery notes: [O]ne fourth of the home care workers and one fifth of the hospital aides speak a language other than English at home. About 15% of nursing home aides speak a language other than English at home. The proportion of workers who are not U.S. citizens is also higher in the home care industry. Id.
129. BERNADETTE WRIGHT, DIRECT CARE WORKERS IN LONG-TERM CARE 2 (2005), available at http://www.hcbs.org/files/75/3748/directcare.pdf (reporting that personal and home-care aides earned a median hourly wage of $8.05, and home-health aides earned a median hourly wage of $8.75).
130. Id. (reporting annualized full-time employment earnings of $16,750 for personal and home-care aides and $18,200 for home-health aides).
131. Id. (reporting annual earnings, based on a thirty-hour week, of $12,558 for personal and home-care aides, and $13,650 for home-health aides);
132. iee also id. at 1 ("30.5% of home care aides and 20.6% of nursing home aides work part time. Direct care workers in long-term care work an average of about 30 hours per week, thus reducing their annual earnings to less than $16,000.");
133. HOME HEALTH AIDES, supra note 46, at 9 ("Long-term care paraprofessionals are reported to work only about 30 hours a week on average, reducing their annualized earnings to well below $15,000.").
134. HOME HEALTH AIDES, supra note 46, at 10;
135. iee also Harmuth, supra note 50, at 89-90 (highlighting a government report indicating that "nurse aides working in home care and nursing homes are twice as likely as workers in other occupations to receive public benefits, particularly food stamps and/or Medicaid covered health benefits");
136. NURSING WORKFORCE, supra note 3, at 13 (reporting that "aides working in nursing homes and home health care are more than twice as likely as other workers to be receiving food stamps and Medicaid, and they are much more likely to lack health insurance").
137. DAWSON & SURPIN, supra note 46, at 6 (commenting that the "quality of direct-care jobs tends to be extremely poor. Wages are low and benefits few; ironically, most direct-care staff do not receive employer-paid health insurance");
138. Rebecca Donovan, "We Care for the Most Important People in Your Life": Home Care Workers in New York City, WOMEN'S STUD. Q., Spring/Summer 1989, at 56, 62 (reporting on the lack of benefits available to home-care workers).
139. PARAPROFESSIONAL HEALTHCARE INST., WHO ARE DIRECT-CARE WORKERS? 1 (2004), available at http://www.directcareclearinghouse.org/download/NCDCW_0904_Fact_Sheet. pdf.
140. See infra notes 182-86 and accompanying text (listing common workplace hazards in home care);
141. iee also Brian J. Taylor & Michael Donnelly, Risks to Home Care Workers: Professional Perspectives, 8 HEALTH RISK & SOC'Y 239, 245 (2006) (observing that home-care workers face "many and varied hazards ranging across access issues, hygiene and infection, manual handling, aggression and harassment, domestic and farm animals, fleas and safety of home equipment").
142. PERSONAL AND HOME CARE AIDES, supra note 8, at 399 (commenting that some homecare clients "are pleasant and cooperative; others are angry, abusive, depressed, or otherwise difficult");
143. iee also Ella Hunter, Violence Prevention in the Home Health Setting, 15 HOME HEALTHCARE NURSE 403, 404-08 (1997) (evaluating strategies to reduce workplace violence against home-care workers):
144. Jacqueline A. Nadwairski, Inner-City Safety for Home Care Providers, 22 J. NURSING ADMIN., Sept. 1992, at 42, 42 (1992) (observing that "one of the biggest issues in the delivery of home care in the inner cities is safety of employees . . . . [Home care employees] encounter weapons and drugs in the homes of patients they serve every day").
145. DIRECT CARE WORKFORCE ISSUES COMM., WIS. COUNCIL ON LONG TERM CARE REFORM, STRENGTHENING WISCONSIN'S LONG-TERM CARE WORKFORCE 4 (2005), available at http://www. wcltc.state.wi.us/PDF/cdcrpt.pdf ("A growing body of research is concluding that the reasons for workers quitting add up to a failure of employers, supervisors, society as a whole, and sometimes even consumers, to adequately respect and value them and the work that they do.");
146. Donovan, supra note 63, at 63 (observing that workers resent their "second-class position" and feel undervalued).
147. Clare L. Stacey, Finding Dignity in Dirty Work: The Constraints and Rewards of Low-Wage Home Care Labour, 27 SOC. HEALTH & ILLNESS 837, 839 (2005);
148. see also id. at 850 ("Home care workers are clearly at the bottom of the medical hierarchy and, not surprisingly, they report being disrespected or ignored by busy doctors or nurses.");
149. Sheila M. Neysmith & Jane Aronson, Home Care Workers Discuss Their Work: The Skills Required to "Use Your Common Sense, " 10 J. AGING STUD. 1, 3 (1996) ("Home care workers . . . provide the hands on daily care yet they have no voice in the home care drama. Their relatively powerless position is reflected in their low pay rates and low occupational status.");
150. id. at 8 (observing that many clients and their families "diminished the home care worker's job by referring to her as a 'cleaning lady'");
151. Stone, supra note 1, at 522 ("The negative public image of the home care worker (e.g., a poorly trained woman with few skills receiving low pay for unpleasant work and with little hope for advancement) discourages individuals from seeking or remaining in this occupation.").
152. Harmuth, supra note 50, at 89 ("Direct care workers can often find jobs that are safer, far less physically demanding and emotionally draining, and provide better pay and benefits.").
153. See Stone, supra note 1, at 529-34.
154. JUDITH ROLLINS, BETWEEN WOMEN: DOMESTICS AND THEIR EMPLOYERS 57 (1985) (describing home care services as a "disguised [form of] domestic work").
155. See KATZMAN, supra note 14, at 44-45 (providing examples of common tasks);
156. PHYLLIS PALMER, DOMESTICITY AND DIRT: HOUSEWIVES AND DOMESTIC SERVANTS IN THE UNITED STATES, 1920-45, at 75-78 (1989) (providing lists of work tasks in domestic service).
157. See generally Peggie R. Smith, Regulating Paid Household Work: Class, Gender, Race, and Agendas of Reform, 48 AM. U. L. REV. 851 (1999).
158. The Law and the Lady, BOSTON J., Jan. 28, 1905.
159. Smith, supra note 73, at 854.
160. KATZMAN, supra note 14, at 111 (commenting that such long hours were not atypical for the time period, as studies investigating the hours of live-in domestics reported a range of fifteen to eighteen hours a day).
161. Id. at 110-11.
162. EVELYN NAKANO GLENN, ISSEI, NISEI, WAR BRIDE: THREE GENERATIONS OF JAPANESE AMERICAN WOMEN IN DOMESTIC SERVICE 141 (1986) (noting that "live-in service was the most common pattern" of domestic service prior to World War I);
163. KATZMAN, supra note 14, at 177 (noting that the movement away from live-in service occurred at about the time of World War I).
164. PALMER, supra note 72, at 77-78;
165. Smith, supra note 73, at 871.
166. PALMER, supra note 72, at 66 (observing that because household employers expected domestics "to feel the same interest in their jobs as in their own homes and families," domestics had to sacrifice their social lives with family and friends);
167. Smith, supra note 73, at 872 (reporting on studies of domestic service that found working-class women held a strong dislike of the job because it was all-consuming).
168. KATZMAN, supra note 14, at 111-12 (referencing the exclusion of domestic service from legislation to restrict women's work enacted at the turn of the century),
169. Smith, supra note 73, at 870.
170. Id. at 854 n.15.
171. See PALMER, supra note 72, at 82 ("Hard and long hours did not pay off in good wages.").
172. Bettina Berch, 'The Sphinx in the Household': A New Look at the History of Household Workers, REV. RADICAL POL. ECON., Spring 1984, at 105, 113.
173. See KATZMAN, supra note 14, at 223-65 (discussing the "servant problem" of the late nineteenth and early twentieth centuries);
174. Smith, supra note 73, at 864-68 (same).
175. See KATZMAN, supra note 14, at 304;
176. PALMER, supra note 72, at 83-84,
177. Berch, supra note 85, at 115.
178. See Smith, supra note 73, at 854 n.15. Domestic service workers were also routinely excluded from workers' compensation statutes. See generally 1 DOUGLASS ARGYLE CAMPBELL, WORKMEN'S COMPENSATION §§ 469-72 (1935) (suggesting that the exclusion was based on the non-industrial character of domestic service). However, some state workers' compensation laws allowed household employers to elect to provide coverage for domestics.
179. See Leila Doman, Legislation in the Field of Household Employment, 31 J. HOME ECON. 90, 91 (1939) (noting that twenty-eight states allowed household employers to extend coverage to domestics).
180. Social Security Act of 1935, ch. 531, §§ 1-1105, 49 Stat. 620, 620-48 (1935) (codified as amended at 42 U.S.C. §§ 301-97 (2000)). "The term 'employment' means any service, of whatever nature, performed within the United States by an employee for his employer, except . . . [d]omestic service in a private home." Id. § 210(b) (2), 49 Stat. at 625.
181. National Labor Relations Act of 1935, ch. 372, §§ 1-15, 49 Stat. 449, 449-57 (1935) (codified as amended at 29 U.S.C. §§ 151-69 (2000)). The current version of the statute defines "employee" to include any employee except agricultural laborers, domestics, employees hired by a parent or spouse, independent contractors, supervisors, and workers covered by the Railway Labor Act. 29 U.S.C. § 152(3). In recent years, the labor movement has focused considerable organizing efforts on home-care workers, both those employed by agencies and self-employed workers. Most notably, in 1999 the Service Employees International Union successfully organized 74,000 home-care workers in Los Angeles, achieving the largest union victory in the United States since 1937. Delp & Quan, supra note 4, at 2;
182. Stu Schneider, Victories for Home Health Care Workers, 249 DOLLARS & SENSE 25, 26 (2003).
183. Fair Labor Standards Act of 1938, ch. 676, §§ 1-19, 52 Stat. 1060, 1060-69 (1938) (codified as amended at 29 U.S.C. §§ 201-19 (2000));
184. see infra notes 128, 159 and accompanying text (explaining that the FLSA did not extend to domestic service workers employed by households because Congress assumed that the work did not affect interstate commerce).
185. National Industrial Recovery Act of 1933, ch. 90, §§ 1-304, 48 Stat. 195, 195-211 (1933), invalidated by A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935);
186. see also Smith, supra note 73, at 887-88 (noting that government officials concluded that domestic service fell outside the scope of the National Industrial Recovery Act).
187. See Smith, supra note 73, at 890. Most state labor legislation enacted prior to the New Deal excluded domestic service workers from coverage. See Doman, supra note 89, at 90 (surveying state labor legislation and noting that domestic service workers were included in the legislation of only seven states);
188. Amey E. Watson, The Lady-of-the-House Is at Home, 28 WOMANS PRESS 22, 22 (1934) (observing that "while in every state in our Union there are labor laws protecting women and children from exploitation and overwork, there is no law to protect those persons who work in households").
189. The exception is the Social Security Act of 1935. The bill introducing the Act in Congress originally included domestic service workers, but the Ways and Means Committee later amended the bill to exclude domestic service in a private home. EDWIN E. WITTE, THE DEVELOPMENT OF THE SOCIAL SECURITY ACT 131 (1962). According to Edwin Witte, who was the Executive Director of the Committee on Economic Security, which crafted the Social Security program, Treasury officials "objected to such inclusive coverage on the score that it would prove administratively impossible to collect payroll taxes from agricultural workers and domestic servants." Id. at 153. Witte adds, however, that "[a]gricultural and domestic service are customarily excluded ... from all types of laws regulating employment conditions, and the Ways and Means Committee . . . merely followed established practice." Id.;
190. see also GEORGE MARTIN, MADAM SECRETARY, FRANCES PERKINS 354 (1983) (observing that the exclusion of domestic service workers from the Social Security program reflected the view that such an exclusion was natural). Historian Jill Quadagno also questions whether administrative difficulties prevented application of the Act to domestics.
191. See JILL QUADAGNO, THE TRANSFORMATION OF OLD AGE SECURITY 115-16 (1988). As she notes, at the point when the United States was considering a social-security system, several European countries already had adopted national pension programs, and many of those countries successfully were covering domestic service workers. Id. at 115, 216 n.71 ("Austria, Belgium, Bulgaria, Czechoslovakia, France, Great Britian, Italy, the Netherlands, and Spain all had coverage for agriculture workers and domestics in their pension plans."
192. (citing Economic Security Act: Hearings on S. 1130 Before the S. Comm. on Finance, 74th Cong. 51 (1935)));
193. see also FED. SEC. AGENCY, FIFTH ANNUAL REPORT OF THE SOCIAL SECURITY BOARD 13 (1940) ("There are no insuperable administrative obstacles to extension of the coverage of Federal old-age and survivors insurance . . . to most of the major excepted employments, including . . . domestic service in private homes . . . .");
194. MAXWELL S. STEWART, SOCIAL SECURITY 225 (1939) ("The fact that both Germany and Soviet Russia make provision for [domestic servants] suggests that the difficulties of including them have probably been exaggerated."). Quadagno and other historians have argued that the exclusion of domestic service workers, as well as agricultural workers, reflected a Southern white agenda to ensure that Blacks remained a captive source of cheap labor.
195. QUADAGNO, supra, at 115-16 ("[S]outherners feared that federal benefits would undermine planters' paternalistic control over tenant labor, particularly black labor. . . . Southern congressmen had no intention of letting federal funds go directly to black workers.");
196. Theda Skocpol, The Limits of the New Deal System and the Roots of Contemporary Welfare Dilemmas, in THE POLITICS OF SOCIAL POLICY IN THE UNITED STATES 293, 303 (Margaret Weir, Ann Shola Orloff & Theda Skocpol eds., 1988) (commenting that the exclusion of domestics and agricultural workers from the Social Security Act was "done to propitiate politically powerful southern Democrats and representatives of commercial farmers").
197. Smith supra note 73, at 855-56 (discussing historical efforts to transform housework and domestic service into a profession).
198. Id. at 856;
199. see also C. HELENE BARKER, WANTED, A YOUNG WOMAN TO DO HOUSEWORK: BUSINESS PRINCIPLES APPLIED TO HOUSEWORK 15 (1917) ("[U]ntil housework [is] regulated in such a way as to give to those engaged in it the same rights and privileges as are granted to them in other forms of labor, the best workers will naturally seek employment elsewhere.");
200. CARA COOK, WOMEN'S TRADE UNION LEAGUE, HELP WANTED! 3-7 (1939) (recommending the adoption of legislative measures or the use of voluntary agreements to improve the conditions in domestic service, including establishment of minimum wages and maximum hours);
201. I. M. Rubinow, Household Service as a Labor Problem, 3 J. HOME ECON. 131, 134-36 (1911) (arguing in favor of using labor unions and labor legislation to improve the conditions in domestic service);
202. Charles Zuebling, The Effect on Woman of Economic Dependence, 14 AM. J. SOC. 606, 616 (1909) (commenting that the "problem of domestic service will never be solved until we have a legal regulation of the hours of domestic servants" and reflecting on opposing views).
203. The Kheel Center for Labor-Management Documentation and Achives at Cornell University Library holds many of the movement's records, which are contained in the National Council on Household Employment Records, 1927-1993. The YWCA Records of the Sophia Smith Collection at Smith College and the Athur and Elizabeth Schlesinger Library on the History of Women in America at Radcliffe College contain additional records.
204. Smith, supra note 73, at 899 (footnote omitted).
205. Erna Magnus, The Social, Economic, and Legal Conditions of Domestic Servants, 30 INT'L LAB. REV. 190, 198 (1934).
206. Doman, supra note 89, at 93 (writing that the exclusion of domestic service from labor legislation reflected a belief that "legislative regulation of [the job] was unnecessary" and commenting that "[t]his belief is based on the assumption that the private home furnishes a safe, moral, healthful environment in which to work").
207. Smith, supra note 73, at 894-97 (highlighting and challenging perceptions of domestic service as an easy occupation);
208. see also PALMER, supra note 72, at 75-78 (describing in detail the exhausting schedule that most domestics worked during the Progressive Era and the New Deal).
209. ARTHUR V. BRIESEN, Preface to LEGAL AD SOC'Y, DOMESTIC EMPLOYMENT 6-7 (1908).
210. A Phyllis Palmer observes, the notion that domestic service involved pleasant and cultural advantages would have appealed to white women because their "social life was not so rigidly segregated from employers as were those of black, Mexican, and Indian women." PALMER, supra note 72, at 70;
211. see also KATZMAN, supra note 14, at 171-72 (discussing the socialization process that often occurred in domestic service and noting its importance for "native-born" white workers relative to European immigrant workers and observing that the experiences of Black workers differed significantly from those of white, native-born or European women). The racial dynamics of the household-reform movement's campaign to attract women into domestic service during the late nineteenth and early twentieth centuries reflected the increased availability of jobs to women in the expanding industrial sector. As industrialization created new opportunities for working-class women, women were increasingly electing factory work over domestic service.
212. KATZMAN, supra note 14, at 228 (noting that women took jobs in areas other than domestic service when industrialization created new job openings). Of course, not all women had the same prospects to escape domestic service and enter industrial jobs. Such jobs were primarily available to white women, and as they fled domestic service, they "left an increasing proportion of black women to scrub floors, make beds, and cook meals for employers."
213. JACQUELINE JONES, LABOR OF LOVE, LABOR OF SORROW 132 (1985);
214. see also PALMER, supra note 72, at 67 ("[D]uring the years after World War I domestic service became more racially defined as an occupation. The proportion of white workers declined as second generation Euro-American women found other jobs."). The reality of workplace discrimination against Black women highlights an unstated aspect of the movement's efforts to appeal to women to enter domestic service; the movement focused on white women, for whom alternative jobs were available.
215. See Smith, supra note 73, at 865-67 (discussing the geographical and racial dimensions of the household-reform movement, and documenting the movement's efforts to appeal to those women who had job opportunities in the industrial sector).
216. PALMER, supra note 72, at 85;
217. iee also KATZMAN, supra note 14, at 81 (noting that "as soon as white women reached marrying age, they tended to stop working");
218. c.f. Smith, supra note 73, at 897-98 (discussing the flawed assumptions that undergirded the notion that domestics were unmarried).
219. GEORGE J. STIGLER, DOMESTIC SERVANTS IN THE UNITED STATES, 1900-1940, at 7 (Nat'l Bureau of Econ. Research, Occasional Paper No. 24, 1946).
220. Id.
221. Smith, supra note 73, at 916 (footnotes omitted) (referencing the work of historians documenting discrimination against African American women, including government programs that targeted women to work in domestic service). For useful accounts of workplace discrimination against African American women during the New Deal, see PAULA GIDDINGS, WHEN AND WHERE I ENTER: THE IMPACT OF BLACK WOMEN ON RACE AND SEX IN AMERICA 146-47, 237 (1984) (discussing the exclusion of Black women from occupations open to white women);
222. JONES, supra note 104, at 136-38, 178-79 (discussing the impact of racial and gender segregation on Black women workers);
223. see also Jo ANN E. ARGERSINGER, TOWARD A NEW DEAL IN BALTIMORE: PEOPLE AND GOVERNMENT IN THE GREAT DEPRESSION 67 (1988) (noting that New Deal officials strongly objected to using federal aid to help "black domestics, who, after all, were accustomed to inadequate wages, low status, and poor working conditions").
224. See QUADAGNO, supra note 95, at 115-16 (suggesting that the exclusion of domestic service workers from the Social Security Act of 1935 was a product of a Southern agenda to exclude African Americans);
225. see also JONES, supra note 104, at 218 (discussing New Deal federal-relief programs and reporting that many Southern whites objected to federal aid to Blacks for fear that the aid would lead Blacks to shun farm work or domestic service work in white households);
226. PALMER, supra note 72, at 110 (observing that New Deal educational and work-relief programs, including domestic service programs led by reformers, failed to challenge "gender beliefs that women's greatest contribution to social well-being came through sacrificial care of children and homes, or racial beliefs that the position of women of color was to service white women in this responsibility");
227. HARVARD SITKOFF, A NEW DEAL FOR BLACKS 52-54 (1978) (discussing the exclusion of domestics from the Social Security Act and discrimination against Blacks by white Southern administrators of New Deal programs);
228. supra note 95 and accompanying text (commenting on the exclusion of domestic service workers from the Social Security Act).
229. See PALMER, supra note 72, at 117.
230. See, e.g., Mary Everett, Can Domestic Service Be Standardized? Industrial Regulation Versus Human Values in Household Employment, 30 J. AM. ASS'N U. WOMEN 90, 91 (1937) (reflecting on the possibility of treating domestic service as a standardized employment relationship, and commenting that "human relationships inside the home cannot be happily set to rule" for "the home is the last place where anyone could reasonably expect [a] lock-step system to work");
231. The Distaff Side: Inters from Household Employers, 28 WOMANS PRESS 556, 556 (1934) (observing that household employers who oppose regulating domestic service often insisted that "housework was different and that "the sacredness of the home demanded that the relations therein be based on something finer and more subtle than reason and the ethics of business").
232. For a thorough discussion of how family and home function together as an emotional refuge against the forces of industrialized society, see generally CHRISTOPHER LASCH, HAVEN IN A HEARTLESS WORLD (1977).
233. Smith, supra note 73, at 910.
234. See id.
235. PALMER, supra note 72, at 115
236. (quoting What One Home-Maker Thinks, 22 WOMANS PRESS 83, 84 (1928)).
237. See Smith, supra note 73, at 877 n.158.
238. Id. at 906.
239. Id.
240. Domestic service employees were finally brought under the Social Security Act in 1950. See Act of Aug. 28, 1950, ch. 809, § 104(a), 64 Stat. 477, 492-512 (codified as amended at 42 U.S.C. § 409(a) (6) (B) (2000)).
241. See infra Part IV.A. (discussing the amendment to the FLSA that extended coverage to domestic service employment).
242. See 29 U.S.C. § 152(3) (2000) (defining "employee" to exclude those persons who work in domestic service).
243. See Peggie R. Smith, Organizing the Unorganizable: Private Paid Household Workers and Approaches to Employee Representation, 79 N.C. L. REV. 45, 61 n.71 (2000) (listing states with collective-bargaining statutes that exclude domestic service).
244. For example, the FLSA exempts live-in domestic service workers from its overtime provision. 29 U.S.C. § 213(b) (21);
245. see also 29 C.F.R. § 552.102(a) (2006) (noting that the FLSA "exempt [s] from the Act's overtime requirements . . . domestic service employees who reside in the household where employed"). The FLSA also exempts domestic service workers who provide companionship services. 29 U.S.C. § 213(a) (15);
246. accord 29 C.F.R. § 552.106;
247. see also infra Parts IV.B-C (discussing the companionship-services exemption and its application to homecare workers).
248. On the continued limitations of the Social Security Act as applied to domestic service workers, see generally Marc Linder, What Hath Zoe Baird Wrought? The New FICA Amendments on Domestic Service Employees, 66 TAX NOTES 113 (1995), which discusses changes in the Social Security Act that were supposed to make it easier for employers to pay taxes for their domestic service workers but that ultimately limited coverage for workers.
249. See SUSAN FLANAGAN, ACCESSING WORKERS' COMPENSATION INSURANCE FOR CONSUMER-EMPLOYED PERSONAL ASSISTANCE SERVICE WORKERS: ISSUES, CHALLENGES AND PROMISING PRACTICES ix (2004), available at http://aspe.hhs.gov/daltcp/reports/paswork.pdf ("Twenty-five states and two U.S. territories completely exempt and 22 states, the District of Columbia and two territories partially exempt domestic service workers from their workers' compensation laws.");
250. Charles P. Sabatino Sc Simi Litvak, Liability Issues Affecting Consumer-Directed Personal Assistance Services-Report and Recommendations, 4 ELDER L.J. 247, 289 (1996) ("Domestic or household employment is entirely excluded from the workers' compensation system in the majority of states.").
251. See 29 C.F.R. § 1975.6;
252. infra Part V.A (discussing the status of domestic service workers under the OSH Act);
253. see also Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 NW. U. L. REV. 1, 76-78 (1996) (discussing the exclusion of domestic service from the OSH Act).
254. See infra Parts IV.B-C (discussing application of the companionship-services exemption to home-care workers).
255. Coke v. Long Island Care at Home, Ltd., 376 F.3d 118 (2d Cir. 2004), vacated 126 S. Ct. 1189 (2006), aff'd on reh'g, 462 F.3d 48 (2d Cir. 2006), cert, granted, 127 S. Ct. 853 (2007).
256. DOL regulations define the term "domestic service employment" as "services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed." 29 C.F.R. § 552.3.
257. See Patricia Mulkeen, Note, Private Household Workers and the Fair Labor Standards Act, 5 CONN. L. REV. 623, 626 (1973) ("Courts have construed the FLSA as not covering domestic service employees, because theirs is not an industry 'engaged in commerce or in the production of goods for commerce.'" (quoting 29 U.S.C. § 202 (1970))). Although prior to the 1974 Amendments, the FLSA did not apply to employees in domestic service employment-those workers employed by private households-it did apply to some domestic service employees employed by third-party businesses.
258. See infra note 159 and accompanying text (discussing FLSA coverage for third-party domestic service employees that existed at the time of the 1974 Amendments).
259. 29 U.S.C § 206(f) (2000) (including domestic service workers in the minimum-wage provisions); Id. § 207(1) (including domestic service workers in the overtime provisions). Athough the Act did not define "domestic service," the Act's legislative history indicates that the term encompassed a "commonly understood meaning . . . to include those employed within the home as cooks, butlers, valets, maids, housekeepers, governesses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, chauffeurs, and the like." Coke, 376 F.3d at 123 (citing S. REP. No. 93-690, at 20 (1974); H.R. REP. No. 93-913, at 35-36 (1974));
260. see also 29 C.F.R. § 552.101(a) (explaining that "[d]omestic service employment" includes "persons who are frequently referred to as 'private household workers'").
261. 29 C.F.R. § 552.3.
262. 29 U.S.C. § 213(a) (15). Congress also carved out a babysitting exemption that applies to "any employee employed on a casual basis in domestic service employment to provide babysitting services." Id; see also Reich v. Miss Paula's Day Care Ctr., 37 F.3d 1191, 1195-96 (6th Cr. 1994) (finding that employees of a daycare center were not exempted under the babysitting provision).
263. 29 C.F.R. § 552.6.
264. Letter from Alfred B. Robinson Jr., Deputy Adm'r, Wage & Hour Div., Dep't of Labor, to an Unnamed Attorney Requesting an Opinion Concerning the Application of the Domestic Service Exception (March 17, 2005), available at http://hr.blr.com/timesavers.aspx?id-l7553.
265. McCune v. Or. Senior Servs. Div., 894 F.2d 1107, 1110 (9th Cir. 1990);
266. see also Cox v. Acme Health Servs., 55 F.3d 1304, 1310-11 (7th Cir. 1995) (rejecting plaintiffs argument that the work she performed as a home-health aide did not qualify as companionship services so as to exempt her from the Act's overtime provision).
267. McCune, 894 F.2d at 1108.
268. Id. In reaching this determination, the court rejected the plaintiffs' attempts to take harbor in two exceptions to the companionship-services exemption: the general-householdwork exception and the trained-personnel exception. Id. at 1110-11. The first exception allows a domestic service worker to provide companionship services and still retain the Act's protections if she does additional general household work, unrelated to the care of the client, in excess of twenty percent of the total weekly hours worked. 29 C.F.R. § 552.6. Stated differently, a companion who also performs general housework is no longer exempted if such work accounts for more than twenty percent of the total weekly hours worked, Id.;
269. see Molly Biklen, Note, Healthcare in the Home: Reexamining the Companionship Services Exemption to the Fair Labor Standards Act, 85 COLUM. HUM. RTS. L. REV. 113, 143-44 (2003) (discussing courts' attempts to define the term "general household work"). Under the second exception, known as the "training exception," individuals who provide in-home care services which require medical training still retain the Act's protections. 29 C.F.R. § 552.6 ("The term 'companionship services' does not include services relating to the care and protection of the aged or infirm which require and are performed by trained personnel, such as a registered or practical nurse.");
270. iee Biklen, supra, at 141-42 (discussing courts' attempts to define the term "trained personnel").
271. 29 C.F.R. § 552.109(a) ("Employees who are engaged in providing companionship services, as defined in [29 C.F.R.] § 552.6, and who are employed by an employer or agency other than the family or household using their services, are exempt from the Act's minimum wage and overtime pay requirements . . . .").
272. See ELLEN O'BRIEN, KAISER COMM'N ON MEDICAID AND THE UNINSURED, LONG-TERM CARE: UNDERSTANDING MEDICAID'S ROLE FOR THE ELDERLY AND DISABLED 13 (2005), available at http://www.kff.org/medicaid/upload/Long-Term-Care-Understanding-Medicaid- s-Role-forthe-Elderly-and-Disabled-Report.pdf (discussing the extent to which the elderly must use their own resources to fund formal long-term care services);
273. Marlene Stum et al., Out-of-Pocket Home Care Expenditures for Disabled Elderly, 30 J. CONSUMER AFF. 24, 25-26 (1996) (discussing out-of-pocket expenditures for home care).
274. To determine whether an employment relationship exists under the FLSA, courts apply an economic-reality test. The test focuses on whether, as a matter of economic reality, the worker depends on the business to which she renders service. Martin v. Selker Bros., 949 F.2d 1286, 1293 (3d Cir. 1991);
275. Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir. 1988); Usery v. Pilgrim Equip. Co., 527 F.2d 1308, 1311 (5th Cir. 1976). The test considers various factors, including the degree of control exercised by the putative employer over the manner in which the worker performs her job. See, e.g., Hathcock v. Acme Truck Lines, Inc., 262 F.3d 522, 525 (5th Cir. 2001).
276. See supra note 16 (describing key sources of public funding for home care).
277. Benjamin, supra note 5, at 81-83; A. E. Benjamin & Ruth E. Matthias, Comparing Consumer- and Agency-Directed Modeb: California's In-Home Supportive Services Program, GENERATIONS, Fall 2000, at 85, 85-86.
278. Benjamin, supra note 5, at 82. This article reported: The preponderance of home care is delivered by home care agencies .... When a program deems an applicant eligible for supportive services at home, he or she is referred to an audiorized provider agency that assigns a worker and schedules service visits. The agency also defines allowable tasks, monitors workers' performance, receives any complaints from recipients, arranges backup as needed, and otherwise manages service delivery. Id.
279. Id. at 85-86 (reporting that the consumer-directed model "delegates all responsibilities for recruiting, hiring, training, and supervising the worker to the client"); id. at 82 (noting that in consumer-directed care, consumers are responsible for decisions about hiring, scheduling, and deciding how a given task should be performed); Pamela Doty et al., Consumer-Directed Modeb of Personal Care: Lessons from Medicaid, 74 MILBANK Q. 377, 378 (1996) ("[Consumer-directed care] permit[s] service recipients-as opposed to medical or social work professionals- comparatively greater choice and control over all aspects of service provision: from hiring the attendant, to defining the attendant's duties, to deciding when and how specific tasks or services are performed.");
280. Robyn I. Stone, Consumer Direction in Long-Term Care, GENERATIONS, Fall 2000, at 5, 6-7 (discussing the growth and implications of consumer-directed care).
281. See supra note 139 (describing the FLSA test to determine whether an employment relationship exists); see also U.S. DEP'T OF HEALTH & HUMAN SERVS., IN-HOME SUPPORTIVE SERVICES FOR THE ELDERLY AND DISABLED: A COMPARISON OF CLIENT DIRECTED AND PROFESSIONAL MANAGEMENT MODELS OF SERVICE DELIVERY iii (1999), available at http://aspe.hhs.gov/pic/pdf/6173.pdf. This report noted:
282. The defining characteristic of a consumer-directed model ... is that it allows persons with disabilities considerable choice and control .... [A consumerdirected model] allows public program clients to have an employer/employee relationship with their individual service providers ....
283. Id; see also infra note 286 (discussing the possible conflict between consumer-directed care and regulations to improve the health and safety of workers).
284. See, e.g., Schultz v. Capital Int'l Sec., Inc., 466 F.3d 298, 305 (4th Cir. 2006) ("Separate persons or entities that share control over an individual worker may be deemed joint employers under the FLSA."); see also Falk v. Brennan, 414 U.S. 190, 195 (1973) (concluding that apartment building maintenance workers were employed by both the building management company and the building owners under the FLSA); 29 C.F.R. § 791.2(a) (2006) ("[A]ll joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the [FLSA], including the overtime provisions.").
285. Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1988) The court observed: [The state agencies] controlled the rate and method of payment, and that they maintained employment records. [The agencies] also exercised considerable control over the structure and conditions of employment by making the final determination, after consultation with the recipient, of the number of hours each [home care] worker would work and exactly what tasks would be performed.
286. Id.; see also Godlewska v. HDA, Human Dev. Ass'n., No. CV-03-3985, 2006 U.S. Dist. LEXIS 30519, at *24-27 (E.D.N.Y. July 18, 2006) (concluding that sufficient facts existed to permit a finding that municipal public agencies involved with the delivery of home care were employers under the FLSA).
287. Public entities involved in the delivery of home care may also qualify as employers of home-care workers in other legal contexts, including Tide VII. See, e.g., Rivera v. Puerto Rican Home Attendants Servs., Inc., 922 F. Supp. 943, 949 (S.D.N.Y. 1996) (holding that a fact-finder could conclude that the City was a joint employer of the agency's home-care workers based on the allegations that the City was heavily involved in monitoring and managing the activities of a home-care agency).
288. See generally Application of the Fair Labor Standards Act to Domestic Service, 66 Fed. Reg. 5481, 5482 (proposed Jan. 19, 2001) (stating that the "number of workers providing these services has ... greatly increased, and most of these workers are being excluded from the FLSA under the companionship services exemption"); see also Cook v. Hays, No. CV 04-3032, 2006 U.S. Dist. LEXIS 36009, at *3 (E.D. La. May 31, 2006) (finding a home-care worker employed by a third-party employer exempt from FLSA overtime provisions because she provided mainly companionship services and her "training and duties fall short of her being considered 'trained personnel'"); Threatt v. Residential CRF, Inc., No. 1:05-CV-117, 2005 U.S. Dist. LEXIS 16903, at *9 (N.D, Ind. Aug. 12, 2005) (considering whether an employer of a group home for disabled individuals is exempted from paying its staff overtime because the staff falls within the companionship-services exemption); Madison v. Res. for Human Dev., Inc., 39 F. Supp. 2d 542, 545 n.3 (E.D. Pa. 1999) (holding that pursuant to 29 C.F.R. § 552.109, "although the plaintiffs are employed by RHD rather than the individuals they serve, that by itself does not exclude them from the exemption"); Terwilliger v. Home of Hope, Inc., 21 F. Supp. 2d 1294, 1299 n.2 (N.D. OkIa. 1998) (rejecting plaintiffs' claim that they were not covered by the companionship-services exemption because they were employed by a third-party-agency employer).
289. Johnston v. Volunteers of Am., Inc., 213 F.3d 559, 561 (10th Cir. 2000). Athough McCune also involved a third-party employer, the enforceability of § 552.109(a) was not raised before the court. See McCune v. Or. Senior Servs. Div., 894 F.2d 1107, 1109-11 (9th Cir. 1990).
290. Johnston, 213F.3d at 561.
291. Id. at 562.
292. Id. at 561.
293. 29 C.F.R. § 552.3 (2006) (emphasis added).
294. Johnston, 213 F.3d at 562.
295. Id. But see Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 133-34 (2d Cir. 2004) (concluding that 29 C.F.R. § 552.109(a) is "jarringly inconsistent" with 29 C.F.R. § 552.3, which defined the term "domestic service employment" to refer "'to services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed'" (quoting 29 C.F.R. § 552.3)), vacated 126 S. Ct. 1189 (2006), aff'd on reh'g, 462 F.3d 48 (2d Cir. 2006), cert. granted, 127 S. Ct. 853 (2007).
296. See Madison v. Res. for Human Dev., Inc., 39 F. Supp. 2d 542, 548 (E.D. Pa. 1999); Terwilliger v. Home of Hope, Inc., 21 F. Supp. 2d 1294, 1301 (N.D. Okla. 1998). Plaintiffs were seldom able to satisfy either the general-household-work exception or the trained-personnel exception. See id. at 1302 (holding that the plaintiff fails to qualify for the training exception); Salyer v. Ohio Bureau of Workers' Comp., 83 F.3d 784, 789 (6th Cir. 1996) (stating that the plaintiff, a wife who cared for her injured husband, fell within the FLSA's companionship-services exemption and did not qualify for either the general-household-work or the training exception).
297. Coke, 376 F.3d 118.
298. Id. at 129.
299. Id. at 133-35 (analyzing the regulation pursuant to the Skidmore doctrine and finding the DOL's reasoning unpersuasive in promulgating the regulation). In reaching this holding, the court concluded that the regulation was not entitled to deference under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Coke, 876 F.3d at 129. Instead, the court analyzed the regulation using Skidmore v. Swift & Co., 328 U.S. 134 (1944). Coke, 376 F.3d at 133. See generally United States v. Mead Corp., 533 U.S. 218 (2001) (using the Skidmore doctrine to analyze agency decisions that do not qualify for Chevron deference). Relative to the Chevron doctrine, the Skidmore doctrine is less deferential to agency decisions. Under Chevron, agency decisions merit respect and are treated as binding, while Skidmore mandates consideration for agency decisions only to the extent that they are persuasive. Christensen v. Harris County, 529 U.S. 576, 587-88 (2000). While legislative regulations merit binding respect under Chevron, courts accord interpretative regulations the lower-level deference mandated by Skidmore. Id. at 632. The Court also stated:
300. [Administrative agencies' i]nterpretations such as those in opinion letters - like interpretations contained in policy statements, agency manuals, and enforcement guidelines... do not warrant Chevron-style deference. . . . Instead, interpretations contained in formats such as opinion letters are "entitled to respect" under . . . Skidmore . . . but only to the extent that those interpretations have the "power to persuade."
301. Id. at 587 (quoting Skidmore, 323 U.S. at 140); see also Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 979 (7th Cir. 1998) (noting the distinction "between nontax legislative and interpretive regulations" and observing that "Chevron applied to legislative regulations only" (citing Hanson v. Espy, 8 F.3d 469 (7th Cir. 1993))). On the distinction between the Chevron doctrine and the Skidmore doctrine, see generally Jim Rossi, Respecting Deference: Conceptualizing Skidmore Within the Architecture of Chevron, 42 WM. & MARY L. REV. 1105 (2001).
302. The Coke court concluded that because § 552.109(a) was an interpretive rule, rather than a legislative rule, it was not entitled to deference under Chevron. Coke, 376 F.3d at 132 ("'In contrast to the controlling authority given the [DOL's] legislative rules-i.e., those promulgated pursuant to an express grant of Congressional authority-the respect accorded the [DOL's] interpretive regulations depends upon their persuasiveness....'" (quoting Reich v. New York, 3 F.3d 581, 587 (2d Cir. 1993))). The court found that the regulation was an interpretive rule because, "by the DOL's own account, it was self-consciously not promulgated in exercise of Congress's delegated authority pursuant to § 213(a)(15)." Id. at 132. The court also observed that the regulation was not entitled to Chevron deference because the DOL promulgated it after notice and comment, which was "at best idiosyncratic and at worst insufficient." Id. (noting that whether a rule was the product of notice and comment is relevant in determining whether to accord Chevron deference).
303. Coke, 376 F.3d at 133. The FLSA protected third-party domestic service employees where the third party was an entity that qualified as part of an enterprise. See EMPLOYMENT STANDARDS ADMIN., U.S. DEP'T OF LABOR, PRIVATE HOUSEHOLD WORKERS 7 n.1 (1974) ("Employees of a household service business are presently covered by the FLSA if the business is a part of an enterprise under section 3 (s) of the Act." (emphasis added) ); see also Application of the Fair Labor Standards Act to Domestic Service, 39 Fed. Reg. 35,383, 35,385 (Oct. 1, 1974) ("Employees who are engaged in providing . . , companionship services and who are employed by an employer other than the families or households using such services . . . [were] subject to the [FLSA] prior to the 1974 Amendments.").
304. Coke, 376 F.3d at 133.
305. Id.
306. ALFRED B. ROBINSON, JR., U.S. DEP'T OF LABOR, WAGE AND HOUR ADVISORY MEMORANDUM NO. 2005-1, APPLICATION OF SECTION 13(A) (15) TO THIRD PARTY EMPLOYERS 7 (2005), available at http://www.dol.gov/esa/whd/FieldBulletins/ AdvisoryMemoranda2005.pdf. ("[T]he Department considers the third party employment regulations at 29 C.F.R. 552.109 to be authoritative and legally binding."); iee also Brief for the Secretary of Labor as Amicus Curiae, Coke v. Long Island Care at Home, Ltd., 376 F.3d 118 (2d. Cir. 2004) (No. 03-7666), available at http://www.dol.gov/sol/media/briefs/coke-12- 3-03.pdf.
307. See Brief for the United States as Amicus Curiae, Long Island Care at Home, Ltd. v. Coke, 126 S. Ct. 1189 (2006) (No. 04-1315) [hereinafter Brief for the United States], available at http://www.usdoj.gov/osg/briefs/2005/ 2pet/6invit/2004-1315.pet.ami.inv.pdf. The Court had earlier invited the Acting Solicitor General to file a brief expressing the views of the United States. Long Island Care at Home, Ltd. v. Coke, 545 U.S. 1103, 1103 (2005).
308. See Long Island Care at Home, Ltd. v. Coke, 126 S. Ct. 1189, 1189 (2006).
309. Coke v. Long Island Care at Home, Ltd., 462 F.3d 48, 50 (2d Cir. 2006), cert, granted, 127 S. Ct. 853 (2007).
310. See supra note 159 and accompanying text (discussing FLSA coverage for third-party domestic service employees that existed at the time of the 1974 Amendments).
311. See 29 U.S.C. §§ 206(a), 207(a)(1) (2000) (defining FLSA coverage in terms of an employee who is "engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce"); see also S. REP. No. 93-S00, at 23 (1973) (explaining the basis of the Senate Committee on Labor and Public Welfare's conclusion that domestic service employees engage in interstate commerce); COOK, supra note 97, at 5 ("The Federal Wage-Hour law does not affect domestic service, which is not an interstate industry.").
312. S. REP. No. 93-690, at 20 (1974); see also H.R. REP. No. 93-913, at 35 (1974); S. REP. No. 93-300, at 22 (1973).
313. S. REP. NO. 93-300, at 22 (1973).
314. Id. at 121 (minority views).
315. See H.R. REP. NO. 93-232, at 95 (1973) (minority views) ("Each of these newly affected [household] employers . . . would have to keep records of hours worked on a regular basis, overtime, and salaries paid. Do we really want to subject housewives to possible criminal penalties for failure to keep these records accurately?"); 119 CONG. REC. 24, 797 (1973) (statement of Sen. Dominick) ("Do we want to try to pass a law which is not going to be abided by by the householder, either in terms of amount or in terms of reporting?"); id. ("It is unrealistic to expect accurate recordkeeping. Nobody is going to keep any records. ... No housewife is going to begin to do this kind of recordkeeping."); id. (statement of Sen. Javits) (referencing the number of housewives complying with the Social Security Act with respect to domestic service employees); id. at 24,799 (statement of Sen. Williams) (noting the lack of respect accorded to domestic service employees and stating "[t]hey are called 'girl' and by their first names while they, themselves, must still address their employers and their employer's children as 'ma'am' or 'sir' or 'Miss Jane'").
316. Application of the Fair Labor Standards Act to Domestic Service, 66 Fed. Reg. 5481, 5482 (proposed Jan. 19, 2001) (quoting Sen. Williams during debate on the 1974 FLSA Amendments); see also Nellis v. G.R. Herberger Revocable Trust, 360 F. Supp. 2d 1033, 1037 (D. Ariz. 2005) (commenting that "[w]hile the statutory language is 'companionship services' rather than 'elder sitters,' the legislative history makes clear that Congress intended to exempt those who 'sat for' elderly and infirm persons").
317. 119 CONG. REC. 24,801 (1973).
318. S. REP. NO. 93-690, at 20 (1974); see also H.R. REP. No. 93-413, at 27 (1973) (Conf. Rep.); H.R. REP. NO. 93-913, at 36 (1974).
319. See supra notes 55-62 and accompanying text (discussing the demographic profile of home-care workers).
320. Application of the Fair Labor Standards Act to Domestic Service, 66 Fed. Reg. 5481, 5482 (proposed Jan. 19, 2001).
321. Id. at 5483.
322. Id. at 5482 ("[T]he Department proposes to amend the regulations pertaining to employment by a third party. This change would deny the companionship services exemption if the worker is employed by someone other than a member of the family in whose home he or she works.").
323. The DOL, in its initial 1975 proposed regulations interpreting the companionship-services exemption, proposed that the exemption not apply to employees of third-party employers, but later abandoned this proposal following notice and comment. See Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 124-25 (2d Cir. 2004) (discussing the companionship-services exemption's legislative history), vacated 126 S. Ct. 1189 (2006), affd on reh'g, 462 F.3d 48 (2d Cir. 2006), cert. granted, 127 S. Ct. 853 (2007). In 1993, the Secretary once again proposed and later withdrew revisions to the regulations governing the companionship-services exemption. See Application of Fair Labor Standards Act to Domestic Service, 58 Fed. Reg. 69, 310, 69,312 (proposed Dec. 30, 1993). The 1993 proposal sought to clarify that in order for the exemption to apply to domestic service employees who supplied companionship services and who were employed by a third-party employer, such employees also had to be employed by the family or household using the services. Id. In other words, third-party employers were only entitled to the exemption if the employees were jointly employed by the family or household. Id.
324. Application of the Fair Labor Standards Act to Domestic Service, 66 Fed. Reg. at 5482 ("The Department has reevaluated the [companionship-services] regulations and determined that-as currently written - they exempt types of employees far beyond those whom Congress intended to exempt when it enacted [the companionship-services exemption]."); see also id. at 5485 ("The Department believes that employment by a party other than the family or household using the companionship services is inconsistent with the status of a companion ....").
325. Based on a review of public comments submitted to the DOL in response to the proposed revision, the critics included various organizations involved in the delivery of home-care services. See, e.g., Letter from Kevin Baker, Senior Independence, to T. Michael Kerr, Adm'r, Wage & Hour Div., Employment Standards Admin., U.S. Dep't of Labor (Mar. 13, 2001) (on file with the Iowa Law Review); Letter from Deana Bolin, Home Instead Senior Care, to Thomas Markey, Acting Adm'r, Wage & Hour Div., Employment Standards Admin., U.S. Dep't of Labor (Mar. 17, 2001) (on file with the Iowa Law Review) ; Letter from Kit Donaldson, Dir. of Programs, Senior Care Action Network, to T. Michael Kerr, Adm'r, Wage & Hour Div., Employment Standards Admin., U.S. Dep't of Labor (Mar. 19, 2001) (on file with the Iowa Law Review) ; Letter from Leslie Steinmetz, Chair, Advisory Council, Area Agency on Aging, to T. Michael Kerr, Adm'r, Wage & Hour Div., Employment Standards Admin., U.S. Dep't of Labor (Mar. 11, 2001) (on file with the Iowa Law Review); Letter from Jan Wimsatt, Home Instead Senior Care, to Thomas Markey, Acting Adm'r, Wage & Hour Div., Employment Standards Admin., U.S. Dep't of Labor (Mar. 19, 2001) (on file with the Iowa Law Review). Similar concerns were also raised in the aftermath of Coke. See Brief for the United States, supra note 163, at 16 (highlighting various groups that submitted amicus briefs in Coke indicating that the decision would increase the cost of home care and disrupt services for the elderly and disabled); Jonathan D. Colburn, Home Health Firms Watch Developments in Overtime Case, SAN FERNANDO VALLEY BUS. J., Jan. 30, 2006, at 1.
326. See supra notes 59-68 and accompanying text (documenting the disadvantageous working conditions in home care).
327. See generally Traci Galinsky et al., Overexertion Injuries in Home Health Care Workers and the Need for Ergonomics, HOME HEALTH CARE SERVICES Q., No. 3, 2001, at 57, 69. Galinsky observes that home-care workers face risks specifically related to the nature of the work, including risks stemming from the following:
328. [A]uto accidents due to frequent travel; assault while working/traveling in high-crime areas; assault while isolated in virtual strangers' homes, wherein unsecured guns and illegal activities may be observed; attacks by dogs in or around the patients' homes; allergic reactions to pets in the homes; and second hand smoke. Id.
329. See John D. Meyer & Carles Muntaner, Injuries in Home Health Care Workers: An Analysis of Occupational Morbidity from a State Compensation Database, 35 AM. J. INDUS. MED. 295, 299 (1999) (studying the incidence of injury in home care and finding that a "high rate and proportion of injuries in home health workers result from motor vehicle accidents").
330. Because "[t]ravel is ... a structural feature of home care work," it is not surprising that workers have a high rate of travel-related injuries. Margaret A. Denton et al., Working in Clients' Homes: The Impact on the Mental Health and Well-Being of Visiting Home Care Workers, 21 HOME HEALTH CARE SERVICES Q., NO. 1, 2002, at 1, 6.
331. See infra Part V.C.I (discussing home-care workers' exposure to bloodborne pathogens).
332. See infra Part V.C.2 (discussing the incidence of injury to home-care workers caused by lifting and moving clients).
333. See sources cited supra note 66 (discussing home care and violence).
334. See NAT'L INST, FOR OCCUPATIONAL SAFETY & HEALTH, U.S. DEP'T OF HEALTH & HUMAN SERVS., NIOSH HEALTH HAZARD EVALUATION REPORT: ALAMEDA COUNTY PUBLIC AUTHORITY FOR IN-HOME SUPPORT SERVICES 1 (2004) [hereinafter HEALTH HAZARD REPORT], available at http://www.cdc.gov/niosh/ hhe/reports/pdfs/2001-0139-2930.pdf. According to the report:
335. In 1997, the U.S. Bureau of Labor Statistics issued a special report on work-related injuries to [home-care workers] showing an injury rate which was 50% higher than that of workers employed in the private hospital sector and 70% higher than the overall rate for all private industry workers. Moreover, the rate of overexertion injuries (which includes musculoskeletal disorders) in [home-care workers] compared to private hospital and private industry workers was 27% and 141% higher, respectively.
336. Id. at 1; see also Stacey, supra note 68, at 843 ("Home care and nursing home aides . . . suffer from the highest number of musculoskeletal disorders of any occupational group in the US." (citation omitted)).
337. 29 U.S.C. § 651(b) (2000).
338. Id. § 652(5).
339. Many state occupational safety and health programs established under 29 U.S.C. § 667(b) do explicitly exclude domestic service workers from coverage, however. See Rosas v. Dishong, 79 Cal. Rptr. 2d 339, 345 n.9 (Cal. Ct. App. 1998) (collecting state OSH Act statutes that exclude domestic service). 29 U.S.C, § 667(b) allows a state to establish its own state plan to develop and enforce occupational safety and health standards. See generally, e.g., Indus. Truck As'n, Inc. v. Henry, 125 F.3d 1S05 (9th Cir. 1997). The Industrial Truck Ass'n court explained:
340. Although the Occupational Safety and Health At authorizes OSHA to promulgate uniform federal standards ... it also permits states to assume and maintain regulatory responsibility for areas in which OSHA has promulgated a federal standard. To do so, a state must submit to OSHA a "state plan" with proposed state standards.
341. Id. at 1306-07.
342. Michael J. Brady Sc Elisa R. Nadeau, Do State OSHA Regulations Apply to Homeowners?, 54 FED'N DEF. & CORP. COUNS. Q. 183, 185 (2004).
343. 29 C.F.R. § 1975.6 (2006).
344. Id.
345. Rosas, 79 Cal. Rptr. 2d at 345 (noting that "domestic service employee" refers to "those employees who perform home-related noncommercial labor in private homes and whose work would normally be done by members of the family unit, but for the availability of outside paid help and the homeowner's ability to pay").
346. See id. at 345 (overturning a lower-court decision which found that a homeowner who hired a tree trimmer was covered by the California OSH Act); Fernandez v. Lawson, 71 P.3d 779, 783 (Cal. 2003) (same); see also Brady & Nadeau, supra note 191, at 195 (noting confusion in the law regarding the OSH Act's reach as applied to homeowners); Silbaugh, supra note 124, at 77 (suggesting, contrary to case law, that "[i]f an individual hires another individual to paint her house or to build an addition onto it, assuming that the employer has some control over the job, she is subject to OSHA regulations even in her home").
347. Rosas, 79 Cal. Rptr. 2d at 346 (concluding that "homeowners are ill-equipped to understand or to comply with the specialized requirements of OSHA" and speculating that extending the OSH Act to homeowners would chill their willingness to hire individuals to perform household duties for compensation); Brady & Nadeau, supra note 191, at 184 (discussing policy reasons for not applying the OSH Act to homeowners, including the fact that "OSHA regulations are dense and technical, often requiring employers to seek compliance assistance").
348. 29 C.F.R. § 1975.6.
349. See NAKANO GLENN, supra note 78, at 146 (commenting on the physical demands of domestic service); Silbaugh, supra note 124, at 77-78 ("It is hard to imagine that the average home qualifies as a safe place to work. . . . Housekeepers are exposed to cleaning chemicals, improperly ventilated work spaces, dangerous objects such as knives, appliances like gas stoves, and other conditions that would not survive in another workplace without prescribed precautions."); see also Joyce F. Zechter & Tee L. Guidotti, Occupational Hazards of Domestic Workers Providing Home Care, 101 PUB. HEALTH 283, 290 (1987) (listing the many hazardous conditions that often exist in the homes of clients); infra Part V.C. (discussing the hazards of home-care work and OSHA's ability to reduce such hazards).
350. Letter from R. Davis Layne, Acting Assistant Sec'y, Occupational Safety & Health Admin., to John J. Genuise, Principal, Byington & Genuise, LLC (Feb. 21, 2001), available at http://www.osha.gov/pls/oshaweb/owadisp. show_document?p_table=INTERPRETATIONS&p_id=23540 (explaining that 29 C.F.R. § 1975.6 "include [s] domestic household tasks performed for an elderly member of the household which has employed the employee in question").
351. 29 C.F.R. § 1975.6. The regulation provides that "individuals who, in their own residences, privately employ persons for the purpose of performing , . . what are commonly regarded as ordinary domestic household tasks, such as house cleaning, cooking, and caring for children, shall not be subject to the requirements of the Act with respect to such employment." Id. (emphasis added).
352. Id.
353. 29 U.S.C. § 654(a)(2) (2000).
354. Id. § 654(a)(1).
355. Joan TA. Gabel & Nancy R. Mansfield, The Information Revolution and Its Impact on the Employment Relationship: An Analysis of the Cyberspace Workplace, 40 AM. Bus. L.J. 301, 349 (2003) (citing Peter D. Guattery, New Technologies, New Liabilities-Employment Law in the Information Age, MD. B.J., May/June 2000, at 2, 6).
356. Id. (quoting Guattery, supra note 204, at 6).
357. David Leonhardt, Who's the Boss? Who's a Worker?, N.Y. TIMES, Feb. 16, 2000, at Gl; see also Steven Greenhouse, Home Office Isn't Liability for Firms, U.S. Decides, N.Y. TIMES, Jan. 28, 2000, at A13.
358. OCCUPATIONAL SAFETY & HEALTH ADMIN, DEP'T OF LABOR, DIRECTIVE NO. CPL 02-00-125, OSHA INSTRUCTION: HOME-BASED WORKSITES (Feb. 25, 2000), available at http://www.osha.gov/pls/ oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=2254 (defining a "home office" as "[o]ffice work activities in a home-based worksite (e.g., filing, keyboarding, computer research, reading, writing)" and defining a "home-based worksite" as "[t]he areas of an employee's personal residence where the employee performs work of the employer").
359. Id.
360. See Julia Malone, OSHA Threatening Telecommuting, Critics Say, ATLANTA J.-CONST., Jan. 5, 2000, at IF; see also OSHA Policy Concerning Employees Working at Home: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Education and the Workforce, 106th Cong. 151 (2000) [hereinafter OSHA Home Office Regulation Hearings] (statement of Rep. Ron Paul) ("[T]elecommuting is particularly valuable for women with young children or those caring for elderly parents. Using technology to work at home gives these Americans the chance to earn a living and have a fulfilling career while remaining at home with their children or elderly parents." (internal quotation marks omitted)); OSHA Home Office Regulation Hearings, supra, at 15-18 (statement of Bobby Kilberg, President, Northern Virginia Technology Council) (discussing the importance of telecommuting to the technology industry in Northern Virginia and highlighting the potential adverse effects of OSHA's position on telecommuting); Prepared Testimony of the Honorable J.D. Hayworth Before the House Education and the Workplace Committee Oversight Investigations Subcommittee (Jan. 28, 2000), available at Federal News Service Database (Lexis) ("In today's modern technological world, telecommuting is proworker, pro-family, pro-environment, and pro-consumer. But potential regulations by OSHA threaten telecommuting and its positive effects.").
361. See, e.g., Michael Brumas, Bachus Eyes OSHA "Threat" Bill Would Exempt Home from Workplace Rules, BIRMINGHAM NEWS (Aabama), Jan. 21, 2000, at IC ("'We must end this threat of federal intrusion into the private homes of those who work at home.'" (quoting Representative Spencer Bachus, who was planning to introduce legislation to prevent the application of OSHA regulations to telecommuters)); Lisa Green, Home-Office Growth Sparks Safety Inquiries, ROCKFORD REG. STAR (Illinois), Feb. 21, 2000, at 1B ("Some fear that the strict regulation of home offices could create a burden for employers and intrusion for employees who want to maintain their privacy."); Home Work: Proposed Rules Would Have Threatened Telecommuting, HOUSTON CHRON., Jan. 7, 2000, at 30 (referencing the OSHA letter and stating that "[i]t is not clear that such invasions of privacy even would be legal. It certainly would be offensive"); James Nash, OSHA Backs Off on Home Rules, OCCUPATIONAL HAZARDS, Feb. 2000, at 8, 8 (discussing a press conference where speakers criticized OHSA's letter on privacy grounds); Laura Sullivan, Home Office Ergonomics, RISK MGMT., Apr. 2000, at 10, 10 ("Businesses maintained that applying a thirty-year-old policy to modern workplace developments would dampen their enthusiasm for flexible work arrangements and possibly lead to an invasion of privacy rights.").
362. 29 C.F.R. § 1910.303(h) (3)(ii) (2006).
363. Id. § 1910.36(b)(7).
364. Id.§ 1910.37(b)(1)-(2), (7).
365. Id. § 1910.176(e).
366. Id. § 1910.305(j) (2).
367. 29 CF.R. § 1910.151(b).
368. OSHA Home Office Regulation Hearings, supra note 209, at 81 (statement of Thorne Auchter, Former Assistant Secretary of Labor, Occupational Safety and Health) (concluding that it is the telecommuting employee's responsibility to comply with the OSH Act, since the employer does not "exercise 'care, custody and control'" over a home-based worksite).
369. Id. at 152 (statement of Rep. Ron Paul) (observing that OSHA's stated intent to hold employers liable for home offices amounts to "a massive invasion of employees' privacy"); see also Michael Selmi, Privacy for the Working Class: Public Work and Private Lives, 66 LA. L. REV. 1055, 1046-48 (2006) (arguing that "just because an employee works from home should not give an employer the right to look into that home, or into an individual's private life," but observing that the issue becomes "a slightly more difficult question regarding what authority an employer ought to have when an employee chooses, for her primary benefit, to work at home"); Kelli L. Dutrow, Note, Working at Home at Your Own Risk: Employer Liability for Teleworkers Under the Occupational Safety and Health Act of 1970, 18 GA. ST. U. L. REV. 955, 965-66 (2002) (commenting on the privacy concerns implicated in the OSHA home office controversy); Julie Buchanan, Work-at-Home Advbory Does Little to Clarify Application of Labor Laws, MILWAUKEE J. SENTINEL, Jan. 10, 2000, at 3 (noting the privacy concerns implicated in the home-office controversy); Frank Swoboda & Kirstin D. Grimsley, OSHA Covers At-Home Workers; Companies Liable For Safety of Telecommuters, WASH, POST, Jan. 4, 2000, at Al (reporting the view of an employee that an attempt by OSHA to regulate home offices would be an invasion of privacy).
370. OSHA Home Office Regulation Hearings, supra note 209, at 152 (statement of Rep. Ron Paul).
371. Swink, supra note 19, at 872.
372. Id. (observing that "there are no known claims of fatalities or serious injuries occurring at telecommuters' homes arising from the activities of their employment").
373. See supra note 207 (providing definitions for "home offices" and "home-based worksite").
374. See supra notes 211-16 and accompanying text.
375. On the history of the OSH Act, see generally BENJAMIN W. MINTZ, OSHA: HISTORY, LAW, AND POLICY (1984).
376. OSHA Standards are grouped into four industrial categories: general industry, construction, maritime and longshoring, and agriculture. 29 C.F.R. §§ 1910-28 (2006). Home-care work falls in the general-industry category. See County Concrete Corp., 16 O.S.H.C (BNA) 1952, 1954 (1994) ("[G]eneral industry standards apply if there is no specific construction, maritime and longshoring, or agricultural standard governing the hazardous condition." (citing Dravo Corp. v. Occupational Safety & Health Review Comm'n, 613 F.2d 1227, 1234 (3d Cir. 1980))); see also Occupational Safety & Health Admin., U.S. Dep't of Labor, Safety and Health Topics, General Industry, http://www.osha.gov/SLTC/generalindustry/index.html (last visited Mar. 6, 2007) ("OSHA uses the term 'general industry' to refer to all industries not included in agriculture, construction or maritime.").
377. 29 C.F.R. § 1910.1030.
378. 65 Fed. Reg. 68, 262 (Nov. 14, 2000), repealed by Act of Mar. 20, 2001, Pub. L. No. 107-5, 115 Stat. 7.
379. See Elise M. Beltrami et al., The Nature and Frequency of Blood Contacts Among Home Healthcare Workers, 21 INFECTION CONTROL & HOSP. EPIDEMIOLOGY 765, 765 (2000) (reporting on the nature and frequency of blood contact exposure among home-care workers and finding that workers were at risk of contact and that control barriers were low).
380. OR. OCCUPATIONAL SAFETY & HEALTH DIV, OR. DEP'T OF CONSUMER & BUS. SERVS., BLOODBORNE PATHOGENS: QUESTIONS AND ANSWERS ABOUT OCCUPATIONAL EXPOSURE 3 (2006) [hereinafter BBP QUESTIONS & ANSWERS], available athttp://www.cbs.state.or.us/external/osha/ pdf/pubs/2261.pdf.
381. 29 C.F.R. § 1910.1030.
382. Am. Dental Ass'n v. Sec'y of Labor, 984 F.2d 823, 825 (7th Cir. 1993), cert, denied, 510 U.S. 859 (1993).
383. Id. at 824. The other two groups were dentists and medical personnel.
384. Id. at 830.
385. Id.
386. Id. at 829; see also Letter from Richard E. Fairfax, Dir., Directorate of Enforcement Programs, Occupational Safety & Health Admin., to Noreen Coyne, Tender Loving Care Staff Builders (May 4, 2000), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table= INTERPRETATIONS&p_id=23454 (explaining that in the aftermath of American Dental, home-care employers must still provide their "employees appropriate personal protective equipment . . . , an exposure control plan, hepatitis B vaccinations, post-exposure evaluation and follow-up, recordkeeping, and generic training").
387. American Dental Ass 'n, 984 F.2d at 829.
388. Id.
389. Id. at 830.
390. Id.
391. Occupational Exposure to Bloodborne Pathogens, 56 Fed. Reg. 64,004, 64,093 (Dec. 6, 1991).
392. See id. ("OSHA is aware that in most instances home healthcare must be provided in an environment and at a location that is not under the control of the employer.").
393. OSHA OFFICE OF OCCUPATIONAL NURSING, U.S. DEP'T OF LABOR, MODEL EXPOSURE CONTROL PLAN FOR HOME CARE: A GUIDE FOR HOSPICE/HOME AGENCIES ON THE BLOODBORNE PATHOGENS STANDARDS (1994) [hereinafter MODEL EXPOSURE PLAN].
394. Id. at 7.
395. Kent A. Sepkowitz, Occupationally Acquired Infections in Health Care Workers: Part II, 125 ANNALS OF INTERNAL MED. 917, 923 (1996).
396. 29 C.F.R. § 1910.1030(d) (2) (iii) (2006) ("Employers shall provide handwashing facilities which are readily accessible to employees.").
397. Id. § 1910.1030(d) (2) (vi) ("Employers shall ensure that employees wash hands and any other skin with soap and water, or flush mucous membranes with water immediately or as soon as feasible following contact of such body areas with blood or other potentially infectious materials.").
398. Id. § 1910.1030(d) (2) (v) ("Employers shall ensure that employees wash their hands immediately or as soon as feasible after removal of gloves or other personal protective equipment.").
399. BBP QUESTIONS & ANSWERS, supra note 229, at 14.
400. 29 C.F.R. § 1910.1030(d) (2) (iv) ("When provision of handwashing facilities is not feasible, the employer shall provide either an appropriate antiseptic hand cleanser in conjunction with clean cloth/paper towels or antiseptic towelettes. When antiseptic hand cleansers or towelettes are used, hands shall be washed with soap and running water as soon as feasible.").
401. Id.
402. Letter from Richard E. Fairfax, Dir., Directorate of Enforcement Programs, Occupational Safety & Health Admin., to Janice Zalen, Dir. of Special Programs, Am. Health Care Ass'n (Mar. 31, 2003) (explaining that if there has been no exposure to or contact with blood or other potentially infectious materials, the use of alcohol-based hand cleansers would be appropriate, but if there has been actual or reasonably anticipated exposure, "hands must be washed with an appropriate soap and running water").
403. MODEL EXPOSURE PLAN, supra note 242, at 10.
404. Occupational Exposure to Bloodborne Pathogens, 56 Fed. Reg. 64,004, 64,093 (Dec. 6,1991) (quoting Amer. Fed. of Home Health Agencies, Inc., OSHA Docket No. H370, Ex. 29-544).
405. See Taylor & Donnelly, supra note 65, at 246 (describing a home-care client whose home "'has no running water and no electricity; he has a tap outside his house'" and who "'depends on three different care workers'" who '"can't wash their hands when he goes to the toilet; they use baby wipes'" (quoting a social worker) ).
406. See Scott K. Fridkin & Robert P. Gaynes, Antimicrobial Resistance in Intensive Care Units, 20 CLINICS CHEST MED. 303, 312 (1999).
407. See infra Part V.D.2 and accompanying text (addressing situations when conflicts between providing the elderly with access to home-care services and ensuring worker safety cannot be adequately resolved, and highlighting the need for increased public funding for home-care services for the elderly to help resolve these conflicts). In theory, home-care workers would bargain for wage premiums to compensate them for engaging in hazardous employment. Several factors, however, weigh against their ability to do so, including their lack of bargaining power, their failure to appreciate fully workplace risks, and the extent to which they can be readily replaced by other workers. Sidney A. Shapiro, Occupational Safety and Health: Policy Options and Political Reality, 31 HOUS. L. REV. 1, 17 (1994). For a discussion on labor-market limitations that hinder workers' ability to bargain effectively for risk compensation,
408. see generally PETER DORMRAN, MARKETS & MORTALITY: ECONOMICS, DANGEROUS WORK, AND THE VALUE OF HUMAN LIFE (1996), and Peter Dorman & Paul Hagstrom, Wage Compensation For Dangerous Work Revisited, 52 INDUS. Sc LAB. REL. REV. 116 (1998).
409. Depending on the type of care required by a client, workers may be in situations where using an antiseptic hand cleanser is as effective as handwashing with soap and water. If so, an employer can request a variance that will allow it to avoid legally complying with some part of an OSHA safety-and-health standard. To receive a permanent variance, an employer must prove that its methods, conditions, practices, operations, or processes provide workplaces that are as safe and healthful as those that follow the OSHA standards. 29 C.F.R. § 1905.11(b)(4) (2006).
410. Gina Pugliese et al., Alcohol-based Handwashing Agents: A Clash with Regulators or Opportunity for Common-Sense Approach?, INFECTION CONTROL TODAY, Feb. 2003, at 8, 8 (concluding that home-care workers' "compliance with hand hygiene can reduce the 2 million healthcare-associated infections that occur in patients annually, as well as reduce the risk of infections transmitted to workers").
411. See, e.g., Galinsky et al., supra note 182, at 60; Meyer & Muntaner, supra note 183, at 296; Iik UrIa Zeytino Iu et al., Casual Jobs, Work Schedules and Self-reported Musculoskeletal Disorders Among VtsitingHome Care Workers, 1 WOMEN'S HEALTH & URB. LIFE 1, 7 (2002).
412. See Galinsky et al., supra note 182, at 59 (describing the different tasks performed by home-care workers that can cause overexertion). The following OSHA comments describing the duties of a nursing-home worker are equally applicable to home care: Providing care to nursing home residents is physically demanding work. Nursing home residents often require assistance to walk, bathe, or perform bathe normal daily activities. In some cases residents are totally dependent upon caregivers for mobility. Manual lifting and other tasks involving the repositioning of residents are associated with an increased risk of pain and injury to caregivers, particularly to the back. These tasks can entail high physical demands due to the large amount of weight involved, awkward postures that may result from leaning over a bed or working in a confined area, shifting of weight that may occur if a resident loses balance or strength while moving, and many other factors. OCCUPATIONAL SAFETY SC HEALTH ADMIN., GUIDELINES FOR NURSING HOMES: ERGONOMICS FOR THE PREVENTION OF MUSCULOSKELETAL DISORDERS 4 (2005) [hereinafter GUIDELINES FOR NURSING HOMES], available at http://www.osha.gov/ergonomics/guidelines/nursinghome/final_nh_guidelines.pdf.
413. SERV. EMPLOYEES INT'L UNION, CARING TILL IT HURTS: HOW NURSING HOME WORK is BECOMING THE MOST DANGEROUS JOB IN AMERICA 12 (1997) [hereinafter CARING TILL IT HURTS], available at www.seiu.org/docUploads/caring_till_it_hurts.pdf; iee abo Galinsky et al., supra note 182, at 59 ("Even under the best of circumstances, lifting a human is awkward and difficult, but most patient-transfer situations are far less than ideal. Patients, by definition, are suffering from some illness or injury, Many are elderly and frail. Some have body parts diat are severely contracted.").
414. Injuries to home-care workers caused by lifting and moving clients are not confined to the United States. See generally Tiina Pohjonen et al., Participatory Ergonomics for Reducing Load and Strain in Home Care Work, 21 INT'L J. INDUS. ERGONOMICS 345 (1998) (highlighting the high incidence of musculoskeletal disorders among home-care workers in Finland); Taylor & Donnelly, supra note 65, at 245 (discussing the hazards faced by home-care workers in Nordiera Ireland);
415. Margareta Torgen et al., Physical Work Load, Physical Capacity and Strain Among Elderly Female Aides in Home-Care Service, 71 EUR, J. APPLIED PHYSIOLOGY 444 (1995) (studying the effects of workload on home-care workers in Sweden).
416. See B. Evanoff et al., Reduction in Injury Rates in Nursing Personnel Through Introduction of Mechanical Lifts in the Workplace, 44 AM. J. INDUS. MED. 451, 451-52 (2003) (discussing the rate of work injuries in health-care workers, including nursing-home workers);
417. Douglas Myers et al., Predictors of Shoulder and Back Injuries in Nursing Home Workers: A Prospective Study, 41 AM. J. INDUS. MED. 466, 466-67 (2002) (discussing shoulder and back injuries among nursing-home workers);
418. Bernice Owen, The Magnitude of Low-Back Problems in Nursing, 11 W.J. NURSING RES. 234, 234, 237-38 (1989) (noting the high prevalence of back injuries in nurses);
419. Alison M. Trinkoff et al., Musculoskeletal Problems of the Neck, Shoulder, and Back and Functional Consequences in Nurses, 41 AM. J. INDUS. MED. 170, 170-71 (2002) (discussing musculoskeletal injures among nurses).
420. CARING TILL IT HURTS, supra note 261, at 7 (reporting that nursing-home aides experience 18.2 injuries per 100 full-time workers-"greater than coal mining (6.2), blast furnaces and steel mills (11.9), warehousing and trucking (13.8), and paper mills (7.5)"); see abo DAWSON & SURPIN, supra note 46, at 10 ("Nationally, nursing home aides experience 18.2 injuries per 100 workers-more than 200,000 injuries per year-far greater than such other high risk occupations as coal mining (6.2 per 100), construction (10.6), and warehousing/trucking (13.8).");
421. Ed Lovern, Providers Hail Ergonomics Reversal, MODERN HEALTHCARE, Mar. 12, 2001, at 13, 13 ("The nursing home industry is more dangerous than coal mining, lumber and steel-making, according to the U.S. Bureau of Labor Statistics.");
422. see also CAL/OSHA CONSULTATION SERV., CAL. DEP'T OF INDUS. RELATIONS, A BACK INJURY PREVENTION GUIDE FOR HEALTH CARE PROVIDERS 3 (1997) [hereinafter BACK INJURY GUIDE], available at http"//www.dir.ca.gov/dosh/dosh_publications/backinj.pdf (observing that the total lost workday injury and illness incidence rates in "home healdi care" and "nursing and personal care" are higher dian those for "more typically hazardous industries" such as construction).
423. Galinsky et al., supra note 182, at 61 (comparing injuries among home-care and nursing-home workers); Ann Myers et al., Low Back Injuries Among Home Health Aides Compared with Hospital Nursing Aides, HOME HEALTH CARE SERVS. Q., NO. 2/3, 199S, at 149, 151 (discussing results of a study finding higher injury rates among home-health aides when compared to hospital nursing aides).
424. Galinsky et al., supra note 182, at 61.
425. Id. at 60 (contrasting the work environments of health-care workers in institutional settings with home-care workers); Meyer & Muntaner, supra note 183, at 296 ("Unlike their counterparts in established settings, home health care workers ... are often working alone widi minimal help, and generally without assistive equipment").
426. Galinsky et al., supra note 182, at 69.
427. Meyer & Muntaner, supra note 183, at 296 (comparing working conditions of nursinghome workers and home-care workers).
428. Galinsky et al., supra note 182, at 60; see also Judy Briggs, Home Care for the Disabled Elderly, 47 WORLD HEALTH, July-Aug. 1994, at 10, 11 (noting potential hazards that exist in the homes of home-care clients including "trailing cables, overloaded electric sockets and loose rugs"); Myers et al., supra note 262, at 150 (observing that home-care workers encounter a greater risk of injury for back problems than do nursing aides because of factors such as the "lower height of beds, lack of height adjustability, access to beds, . . . and unavailability of patient handling equipment such as patient lifts and transfer devices").
429. Taylor & Donnelly, supra note 65, at 245 (quoting a home-care manager).
430. See supra note 227; see abo Ergonomics Program, 64 Fed. Reg. 65,768, 65,864 (proposed Nov. 23, 1999) (defining musculoskeletal disorders in the standard as "injuries and disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal disks" and explaining diat "[t]hese are medical conditions that generally develop gradually over a period of time, and do not typically result from a single instantaneous event"). OSHA issued its final rule adopting the Ergonomics Program in 65 Fed. Reg. 68,262 (Nov, 14, 2000). That rule was overturned pursuant to the Congressional Review Act. See Ergonomics Program, 66 Fed. Reg. 20,403 (Apr. 23, 2001).
431. Ergonomics Program, 64 Fed. Reg. at 65,790.
432. The standard became effective on January 16, 2001. Ergonomics Program, 65 Fed. Reg. at 68,262 (referring to the "final Ergonomics Program standard").
433. Act of Mar. 20, 2001, Pub. L. No. 107-5, 115 Stat. 7 ("Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the Department of Labor relating to ergonomics . . ., and such rule shall have no force or effect." (second emphasis added)); see also Cynthia Estlund, Rebuilding the Law of the Workplace in an Era of Self-Regulation, 105 COLUM. L. REV. 319, 346-47 (2005) (discussing the promulgation and ultimate rescission of the ergonomics standard) ;
434. Charles Tiefer, How to Steal a Trillion: The Uses of Laws About Lawmaking in 2001, 17 J.L. & POL. 409, 472-77 (2001) (discussing the use of the Congressional Review Act to repeal the ergonomics standard). OSHA has since drafted ergonomie guidelines for a few industries including nursing homes. See GUIDELINES FOR NURSING HOMES, supra note 260. The guidelines do not address the particularities of home-care work, and given the dissimilarities in work environments between institutional care settings and home-based settings, the guidelines' applicability to the homecare industry appears doubtful.
435. Ergonomics Program, 65 Fed. Reg. at 68,281.
436. Id.
437. Id.
438. Jan Angus et al., The Personal Significance of Home: Habitus and the Experience of Receiving Long-Term Home Care, 27 SOC. HEALTH & ILLNESS 161, 178 (2005);
439. see also Isabel Dyck et al., The Home as a Site for Long-Term Care: Meanings and Management of Bodies and Spaces, 11 HEALTH & PLACE 173,174 (2005). Dyck and her coauthors explain: While care in institutions is provided in the relatively standardized spaces of clinics and hospitals designed around professional care practices and equipment needs, there is no such universality of homespaces in which long-term care is provided. Care is provided in spaces designed for other purposes, of varying sizes and conditions, and where there are strong associations with the notions of privacy and "family life." Id at 174.
440. See, e.g., Larry Lipman, Aging Americans Want Home, Safe Home, AUSTIN AM.-STATESMAN (Austin, Tex.), May 6, 2000, at G8 ("[T]he major reasons for not making wanted home modifications are cost and the inability of homeowners to make the alterations themselves."); Brook Raflo, The Key Ingredient, HOMECARE, Aug. 2002, at 56, 56 (Although many U.S. institutions have begun to adopt overhead lift systems, 'the big barrier for home care is the installation cost'" (quoting Brian McReavy, Product Manager, Sunrise Medical)).
441. Diane Rowland, Measuring the Elderly i Need for Home Care, 8 HEALTH AF. 39, 45 (1989) ("Forty-one percent of impaired elderly people have incomes below 150 percent of poverty, compared to 31 percent of all elderly people. . . . Nearly a quarter (22 percent) of impaired elderly people are below the federal poverty level."). The physical structure of a client's living space may further frustrate die application of an ergonomics standard to private homes. Clients who live in cramped quarters may not have the option of refitting their living space in a manner that would be optimal for their care and for the safety of workers. Also, clients who live in rental housing frequendy do not know their rights pursuant to the Fair Housing Amendments Act of 1988, and landlords are often unaware diat the law requires them "to allow reasonable modifications to dwelling units at the tenant's expense to allow full enjoyment of the premises." EDWARD STEINFELD ET AL., CENTER FOR INCLUSIVE DESIGN & ENVTL. ACCESS, TECHNICAL REPORT: HOME MODIFICATIONS AND THE FAIR HOUSING LAW 7 (1996), available at http://www.ap. buffalo.edu/idea/pubpdf/homods.pdf. However, "the owner can require that tenant to restore the modified portion of the apartment to its original condition, taking into account reasonable wear and tear." Id. at 8.
442. See, e.g., Julia Twigg, The Spatial Ordering of Care: Public and Private in Bathing Support at Home, 21 SOC. HEALTH & ILLNESS 381, 381 (1999) (examining "the ordering of privacy within die home and its implications for the provision of intimate [home] care");
443. iee also Brenda Roe et al., Elders' Perceptions of Formal and Informal Care: Aspects of Getting and Receiving Help for Their Activities of Daily Living, 10 J. CLINICAL NURSING 398, 402-03 (2001) (discussing the attitudes of the elderly toward informal care and formal home care and observing that women were more likely to experience an invasion of privacy relative to men).
444. Angus et al., supra note 278, at 169-73.
445. Id. at 171 (commenting on a home-care client who was "unhappy with the way equipment had begun to crowd her room and saw the [presence of a] commode chair as a violation of her aesthetic tastes") ; Maare Tamm, What Does a Home Mean and When Does It Cease to Be a Home? Home as a Setting for Rehabilitation and Care, 21 DISABILITY & REHABILITATION 49, 51 (1999). The rearrangement of furniture for purposes of home care or the introduction of technological aids into the home is perceived as a significant intrusion in the home. Home furnishings are part of die family identity, and the furniture in the home is a kind of line qua non, without which one does not wish to show one' s home to odiers. The arrangements diat die family is asked to make are perceived not as a simple rearrangement, but as something essential being disturbed and partly lost. Id.
446. Angus et al., supra note 278, at 171 (observing that home-care equipment such as portable toilets "are symbols or distinctions of an unwelcome shift to a habitus of dependency or disability"); see also Tamm, supra note 283, at 51 (commenting that when homes are altered to accommodate home care, when rugs and ornaments are moved, or when a hospital bed replaces a standard bed, the client and the family may "feel that the home no longer has the personal atmosphere that they associate widi their home, and that is when they feel that the sanctity of the home has been encroached upon").
447. Pia C Kontos, Resisting Institutionalization: Constructing Old Age and Negotiating Home, 12 J. AGING STUD. 167, 176 (1998) (observing that even in a community living environment, such as an assisted-living home, there is often a contest between residents and staff over die construction of the space as a place of home versus an institutionalized- care facility: "The tenants struggle to establish and maintain certain social arrangements in their home world in an effort to negate any perceived features of an institutional world");
448. see also Janine Wiles, Conceptualizing Place in the Care of Older People: The Contributions of Geographical Gerontology, 14 J. CLINICAL NURSING 100, 105 (2005) ("Home is itself a powerful symbol of autonomy and independence for many older people . . . whereas institutions are symbolically associated with die loss of autonomy and independence."). Wiles offers the following description of the conflict that may arise between worker and client when it comes to die healdi and safety of the former: Healdi professionals entering a home as 'outsiders' to provide care to an older person need work spaces that are hygienic, efficient, clean and safe. Safe workplaces mean safety from abuse, safe working conditions (e.g. clean air, unpolluted by second-hand smoke, dust, or pet dander), and safety in travelling to and from work places. Older persons receiving care and their families, however, do not necessarily see homes as clinical work spaces, and instead may place value on the home as a place diat is private, comfortable, aesthetically pleasing, full of memories and dreams and personal belongings, a place where they have the privacy to carry out their personal habits, enjoy the company of a loved and loyal pet, and an affordable place. Id. at 103.
449. Galinsky et al., supra note 182, at 67. Galinsky observed: Implementing ergonomics interventions in Home Health Care settings is likely to be especially challenging. Many home health care patients and their families may already be overwhelmed by the changes in their lives and homes that have been necessitated by their home care situation. Additional requests for them to accommodate ergonomics interventions in their homes may be met with reluctance. Id. Increased regulation of home care in a manner that interferes with clients' control over their homes may also run counter to the goals of consumer-directed care ("CDC"). In agency-based care, professionals make key decisions regarding their client's care. By contrast, CDC "starts with the premise that individuals with long-term care needs should be empowered to make decisions about the services and supports they receive, including having primary control over the nature of the services, and who, when, and how the services are delivered." James R. Knickman & Robyn I. Stone, The Public/Private Partnership Behind the Cash and Counseling Demonstration and Evaluation: Its Origins, Challenges, and Unresolved Issues, 42 HEALTH SERVICES RES. 362, 364 (2007);
450. see also A. E. Benjamin, Consumer-Directed Services at Home: A New Model for Persons with Disabilities, 20 HEALTH AFF. 80, 81 (2001);
451. Jane Tilly et al., Consumer-Directed Home and Community Services Programs in Five Countries: Policy Issues for Older People and Government, 24 GENERATIONS 74, 77 (2000); supra notes 142-44 and accompanying text (noting distinctions between agency-based care and CDC as diey relate to the FLSA determination of whether an employment relationship exists). Because this philosophy of empowerment suggests that clients should control how a home-care worker performs her tasks, CDC may conflict with workplace standards designed to increase the health and safety of workers, as well as related efforts to increase workers' training and education. See infra notes 311-313 and accompanying text (arguing in favor of increased training of workers to enable them to detect potential hazards in clients' homes). A one leading CDC proponent writes, many home care users "feel that the less institutional work experience and health care-related training assistants have,... the easier it is for the consumer to direct his or her assistants. If somebody is to be trained, many consumers contend, it should be the users of [home care]." ADOLF D. RATZKA, INDEPENDENT LIVING AND ATTENDANT CARE IN SWEDEN: A CONSUMER PERSPECTIVE 39 (World Rehabilitation Fund, Monograph No. 34, 1986); see abo id. at 41 ("[T] here is a clear conflict between workers' attempts to upgrade the professional status of their work and consumers' interests in obtaining more control over service delivery and quality."). Commentators voice concern about this conflict in terms of whether CDC, relative to agency care, lacks adequate measures to ensure quality of service.
452. See, e.g., Joshua M. Wiener, Commentary: Cash and Counseling in an International Context, 42 HEALTH SERVICES RES. 567, 571 (2007) ("Compared with agency-directed care, consumer-directed services lack the standard quality assurance structure of paraprofessional training, supervision by professionals, and provision of technical services by professionals."). But see Kevin J. Mahoney et al., The Future of Cash and Counseling: The Framers' View, 42 HEALTH SERVICES RES. 550, 558 (2007) (noting that a lack of training is a problem in CDC and stressing the need for increased training, but suggesting that CDC, relative to agency care, does not exacerbate the health and safety concerns associated with inadequate training).
453. See supra note 188 and accompanying text.
454. Galinsky et al., supra note 182, at 62.
455. See supra note 258 and accompanying text (discussing the connection between the safety of workers and proper care for clients); see also CARING TILL IT HURTS, supra note 261, at 17 ("Workers aren't the only ones put at risk by unsafe working conditions. Patients also suffer. The industry spends $1.2 billion to heal preventable decubitus ulcers (bedsores) caused by lack of nutritional hydration, mobility and cleanliness, and $4.3 billion on incontinent care because residents are not toileted frequently enough.").
456. See Stone, supra note 1, at 525 (discussing the negative impact of high job turnover on the well-being of home-care clients).
457. 29 U.S.C. § 654(a)(1) (2000). To establish a violation of the general duty clause, the complainant "must prove (1) that the employer failed to render its workplace free of [a] recognized hazard, (2) the hazard was causing or likely to cause death or serious physical harm, and (3) there was a feasible method by which the employer could have abated the hazard." Safeway, Inc. v. Occupational Safety Sc Health Review Comm'n, 382 F.Sd 1189, 1195 (10th Cir. 2004); see also Caterpillar Inc. v. Occupational Safety Sc Health Review Comm'n, 122 F.3d 437, 440 (7th Cir. 1997).
458. See, e.g., Bianchi Trison Corp., 20 O.S.H. Cas. (BNA) 1801, 1823 (2004); Scarff's Nursery Inc., 18 O.S.H. Cas. (BNA) 1542, 1542 (1998).
459. Beverly Enters., Inc., 19 O.S.H. Cas. (BNA) 1161,1183-88 (2000) (finding that low back pain experienced by nursing-home assistants while lifting and moving residents in nursing homes was a recognized hazard); Pepperidge Farm Inc., 17 O.S.H. Cas (BNA) 1993, 2003-04 (1997) (recognizing lifting and repetitive-motion injuries experienced by employees of Pepperidge Farm as hazards).
460. Beverly, 19 O.S.H. Cas. (BNA) at 1172-74.
461. Id. at 1162-64.
462. Id. at 1172 (remanding for further proceedings on the issue of feasibility).
463. Baroid Div. of NL Indus., Inc. v. Occupational Safety & Health Comm'n, 660 F.2d 439, 447 (10th Cir. 1981) (explaining diat "feasible" means economically and technologically capable of being done); Arcadian Corp., 20 O.S.H. Cas. (BNA) 2001, 2011 (2004) ("Feasible means of abatement are those established if 'conscientious experts familiar with die industry' would prescribe those means and mediods to eliminate or materially reduce the recognized hazard." (quoting Pepperidge Farm, Inc., 17 O.S.H. Cas. (BNA) at 2032)).
464. See, e.g., BACK INJURY GUIDE, supra note 26S, at 29 (describing a "stand-assist" lift "for moving patients and residents to and from chairs, toilets, beds or into and out of showers" and commenting that the lifts are "appropriate for use in the provision of home care, where space or storage is limited, or in moving individuals into and out of cars"); Galinsky et al., supra note 182, at 66 (noting that "[n]umerous basic devices, such as draw sheets, slide boards, rollers, slings, and belts, have been designed to assist health care workers during manual patient transfers" and noting that the effectiveness of a device "will depend on its suitability for specific situations").
465. Waldon Healthcare Ctr., 16 O.S.H. Cas. (BNA) 1052, 1063 (1993). The Commission explained: One of the criteria for determining whedier a proposed measure of abatement is feasible is whether the proposed measure is cost prohibitive. Under the general duty clause, an employer is not required to adopt measures that would threaten its economic viability. One issue to consider when determining whether abatement is economically feasible is whether die cost of compliance would jeopardize a company's long-term profitability and competitiveness. Id. (internal citations omitted); see also Beverly, 19 O.S.H. Cas. (BNA) at 1192 (stating that "an abatement method is not economically feasible if it 'would clearly threaten the economic viability of the employer'" (quoting Nat'l Realty & Constr. Co. v. Occupational Safety & Health Review Comm'n, 489 F.2d 1257,1266 n.37 (D.C Cir. 1973))).
466. See generally, e.g., Reynolds, Inc., 21 O.S.H. Cas. (BNA) 1581 (2006) (explaining that an abatement must eliminate or materially reduce die hazard in question); Arcadian Corp., 20 O.S.H. Cas. (BNA) at 2011 ("Feasible means of abatement are established if 'conscientious experts, familiar with the industry' would prescribe those means and methods to eliminate or materially reduce the recognized hazard." (quoting Pepperidge Farms, Inc., 17 O.S.H. Cas. (BNA) at 2032)); see also GUIDELINES FOR NURSING HOMES, supra note 260, at 6 ("OSHA recommends diat manual lifting of residents be minimized in all cases and eliminated when feasible.").
467. Am. Dental Ass'n v. Occupational Safety & Health Admin., 984 F.2d 823, 830 (7th Cir. 1993).
468. 42 CF.R. § 484.30(a) (2006) (listing the duties of a home health agency's registered nurse for participation in Medicare-covered home-care services).
469. See CTR. FOR MEDICARE & MEDICAID SERVS., U.S. DEP'T OF HEALTH & HUMAN SERVS., MEDICARE BENEFIT POLICY MANUAL § 30.2.1 (37th Rev. 2005), available at http://www.cms.hhs.gov/manuals/Downloads/bp102c07.pdf.
470. The home visits are conducted pursuant to a physician-certified plan of care developed for the client. Such a plan of care is one of the eligibility requirements that a potential beneficiary must meet in order to qualify for Medicare-sponsored home care. 42 C.F.R. §§ 409.42(d), 424.22.
471. See Susan I. Klein et al., The Role of Occupational Therapists in Home Modification Programs at an Area Agency on Aging, 16 PHYSICAL & OCCUPATIONAL THERAPY GERIATRICS 19, 22-25 (1999) (discussing the issues that should be involved in a home inspection from the perspective of an occupational therapist);
472. Roberta A. Newton, Prevention of Falls at Home: Home Hazard and Safety Assessment and Management, 14 ANNALS OF LONG-T ERM CARE: CLINICAL CARE AND AGING 28, 31 (2006) (providing a checklist of items that should be inspected to help reduce die likelihood of injury to elderly individuals, including lighting, stairwells, floors, kitchens, bathrooms, pets, and furniture). Although these sources focus on reducing hazards to the elderly, the suggestions made should also help to safeguard the safety of home-care workers.
473. See supra note 291 and accompanying text (defining the general duty clause).
474. See, e.g., Am. Wrecking Corp. v. Sec'y of Labor, 351 F.3d 1254, 1260 (D.C. Cir. 2003) ("The [OSH] Act imposes on employers a general duty to keep workplaces 'free from recognized hazards that are ... likely to cause death or serious physical harm.'" (emphasis added) (quoting 29 U.S.C. § 654(a)(1) (2000))); Pa. Power & Light Co. v. Occupational Safety & Health Review Comm'n, 737 F.2d 350, 354 (3d Cir. 1984) ("[A]n employer must actively endeavor to keep its workplace free of recognized hazards and to comply with specific OSHA regulations . . . ." (emphasis added)).
475. See, e.g., U.S. Steel Corp., No. 79-7156, 1981 OSAHRC LEXIS 245, at *10 (1981) ("[A] violation of the general [duty] clause may be established where employees are not provided adequate training and supervision.") ; Amoco Tex. Ref. Co., No. 79-5292, 1980 OSAHRC LEXIS 215, at *26 (1980) ("An employer must take reasonable precautionary steps to protect its employees from reasonably foreseeable recognized dangers that are causing or are likely to cause death or serious physical injury. And, precautionary steps . . . include the employer's providing an adequate safety and training program." (quoting Brennan v. Butler Lime & Cement Co., 520 F.2d 1011,1017 (7th Cir. 1975))); Ace Servs., Div. of Uranus Servs. Corp., No. 78-0625,1979 OSAHRC LEXIS 208, at *7 (1979) (same).
476. AM. HEALTH CARE ASS'N, ISSUES OF QUALITY IN HOME- AND COMMUNITY-BASED CARE 2 (2003), available at www.ahca.org/research/ hcbs_qualityfactsheet_030915.pdf.
477. Superior Custom Cabinet Co., 18 O.S.H. Cas. (BNA) 1019, 1021 (1997) (quoting TriState Roofing & Sheet Metal, Inc. v. Occupational Safety & Health Review Comm'n, 685 F.2d 878,881 (4th Cir. 1982)).
478. It should be noted that home-care agencies that deliver federally funded home care must ensure that their workers receive practical training. 42 C.F.R. §484.36 (2006); ROBYN I. STONE & JOSHUA M. WIENER, WHO WILL CARE FOR US? ADDRESSING THE LONG-TERM CARE WORKFORCE CRISIS 19 (2001), available at http://www.rwjf.org/files/publications/other/CareForUs.pdf; WRIGHT, supra note 59, at 2. The utility of such training as a means of safeguarding the health and safety of workers is questionable, however. First, the required training is extremely limited, consisting of only seventy-five hours. 42 C.F.R. § 484.36(a); see WRIGHT, supra note 59, at 2 (highlighting the limited nature of training required for home-care workers under federal law). In addition, such training seems directed toward ensuring proper care of the client and does not appear to address the need to safeguard the well-being of the worker. See 42 C.F.R. § 484.36(a) (listing standards for training that focus on the proper care of clients).
479. See supra notes 264-65 and accompanying text (highlighting the high incidence of musculoskeletal injuries among home-care workers); HEALTH HAZARD REPORT, supra note 187, at 7 (reporting on focus-group interviews with home-care workers and observing that "the majority of workers in all of the groups were unaware of even the most basic devices such as gait belts, transfer boards, and shower chairs").
480. See GUIDELINES FOR NURSING HOMES, supra note 260, at 7 ("Training is necessary to ensure that employees and managers can recognize potential ergonomics issues in the workplace, and understand measures that are available to minimize the risk of injury.").
481. See iǔra notes 244-56 and accompanying text (discussing clients' homes that lack running water and their implications for worker health and safety under the BBP standard) ; notes 269-70 and accompanying text (discussing structural constraints in clients' homes); iee abo Sandra J. Newman, Housing Policy and Home-Based Care, 73 MILBANK Q 407, 408 (1995) ("[F]eatures of the housing environment, such as the size and configuration of the dwelling ... may either facilitate or prevent links with needed home-based services. ... In some cases, the ability to make physical modifications to the dwelling or property may determine whether a person with severe mobility problems can remain at home.").
482. Jane Adler, Report Card; Study Signab Upcoming Changes in Senior Housing Policies, CHI. TRIB,, Jan. 30, 2000, at 5 (commenting on a government report which found that "[approximately 1.1 million elderly households say their homes need modification" and "[o]ne in eight households headed by a person age 85 or older needs functional modifications to their home"); Randi Feigenbaum, Buyers and Cellars/Housing Not Suited to Seniors' Needs, NEWSDAY (New York), Mar. 3, 2000, at C03 (reporting that a study by the Harvard University's Joint Center for Housing Studies found "that most existing housing is not built to meet seniors' needs"); Newman, supra note 314, at 409. According to Newman: [RJoughly 17 percent of the elderly population who might be able to remain in the community and receive in-home and community-based services are living in housing units and neighbhorhoods that eidier impede the efficient delivery of these services or preclude their delivery altogether. These impediments include physical features of the dwelling, such as lack of space or special modifications, that would make it difficult, if not impossible, to accommodate long-term care service delivery in die home, and features of the building ... or neighborhood ... that are likely to increase the cost of service delivery because of the absence of economies of scale. Id. at 409-10.
483. Erin Davis, Comment, A New York Perspective Regarding Access and Usability for the Disabled and Elderly in Private Residential Dwellings: What Can Be Done on a Local Level to Provide Basic Access and Usability in Private Dwellings Utilizing Cost Effective and Efficient Methods, 12 ALB, LJ. SCI. & TECH. 917, 921 (2002) (discussing the findings of an Administration on Aging report); Kathryn Lawler, Aging in Place: Coordinating Housing and Health Care Provision for America's Growing Elderly Population 9 (Joint Ctr. for Hous. Studies of Harvard Univ., Working Paper No. W01-13, 2001), available at http://www.jchs.harvard.edu/publications/ seniors/lawler_w01-13.pdf (commenting that "approximately half of the elderly have had their homes modified to be appropriate for their disability level") ; Josephine Louie, The Housing Modifications for Disabled Elderly Households 18 (Joint Ctr. for Hous. Studies of Harvard Univ., Working Paper No. W99-8, 1999), available at http://www.jchs.harvard.edu/ publications/seniors/louie_W98-8.pdf (noting that "half or more of households with mobility-impaired elderly members do not have any of the modifications that... would be either necessary or highly useful").
484. Lawler, supra note 316, at 13 (quoting U.S. DEP'T OF HOUS. & URBAN DEV., HOUSING OUR ELDERS 6 (1999)).
485. See William Mann et al., Effectiveness of Assistive Technology and Environmental Interventions in Maintaining Independence and Reducing Home Care Costs for the Frail Elderly, 8 ARCHIVES FAM. MED. 210, 210 (1999) ("Relatively few [assistive technology] devices, and even fewer [environmental interventions], are covered by third-party payers, nor are the services associated with assessing a frail elderly person or the home environment paid for by insurance.");
486. Melissa Tabbarah et al., Disability: The Demographics of Physical Functioning and Home Environments of Older Americans, 18 J. ARCHITECTURAL Sc PLAN. RES. 183, 191 (2001) ("With lower levels of income at older ages, individuals have fewer resources to purchase equipment or home modifications. Even the most well designed housing facility is of little value if those who can benefit from it cannot afford it."); STEINFELD ET AL., supra note 280, at 2 ("Older people and those with disabilities often live on fixed incomes and have difficulty paying for needed modifications."). While research indicates that cost is a critical factor that contributes to elderly individuals failing to acquire beneficial home modifications, it does not appear to be the only factor.
487. See generally Deborah Messecar, Factors Affecting Caregivers' Ability to Make Environmental Modifications, J. GERONTOLOGICAL NURSING, Dec. 2000, at 32 (discussing the various factors that influence the ability of the elderly to make home modifications, including cost, availability, ease of use, and ease of installation).
488. Sweden's commitment to supporting its elderly population becomes evident when one compares the country's spending on long-term care to such spending in countries that form the Organisation for Economic Co-operation and Development ("OECD"), of which Sweden is a member. The OECD is an international organization of thirty countries that mainly represent the developed areas of the world. Org. for Econ. Co-operation & Dev., About OECD, http://www.oecd.org/about/ (last visited Mar. 6, 2007). Of the thirty member countries in the OECD, Sweden spends more on long-term care than any other country. ORG. FOR ECON. COOPERATION & DEV., ENSURING QUALITY LONG-TERM CARE FOR OLDER PEOPLE 2 (2005), available at http://www.oecd.org/dataoecd/53/4/34585571.pdf. While most countries spend less than 1.5 percent of gross domestic product on long-term care, Sweden spends close to 3.0 percent. Id. at 6;
489. see also Gerdt Sundström et al., The Shifting Balance of Long-Term Care in Sweden, 42 GERONTOLOGIST 350, 351 (2002);
490. Gun-Britt Trydegard Sc Mats Thorslund, Inequality in the Welfare State? Local Variation in Care of the Elderly - The Case of Sweden, 10 INT'LJ. SOC. WELFARE 174, 175-76 (2001).
491. For a consideration of the trade-offs involved in maintaining die type of welfare system that characterizes Sweden, see generally Harold L. Wilensky, Trade-Offs in Public Finance: Comparing the Weil-Being of Big Spenders and Lean Spenders, 27 INT'L POL. SCI. REV. 333 (2006).
492. DIRECTORATE FOR EMPLOYMENT, LABOUR, & SOC. AFFAIRS, ORG. FOR ECON. COOPERATION Sc DEV., AGEING: PENSION REFORM AND LONG-TERM CARE 7 (2005), available at http://www.oecd.org/dataoecd/60/40/35407553.pdf (reporting that ninety percent of long-term care spending in Sweden comes from public sources);
493. see also MARTIN KARLSSON, COMPARATIVE ANALYSIS OF LONG-TERM CARE SYSTEMS IN FOUR COUNTRIES 22 (2002), available at http://www.iiasa.ac.at/Admin/PUB/Documents/IR-02-003.pdf ("Only a small share of the expenditures on long-term care [in Sweden] is financed through out-of-pocket payments; according to the latest estimate by the government, this share is now approximately 5 per cent.").
494. GEORGETOWN UNIV. LONG-TERM CARE FIN. PROJECT, NATIONAL SPENDING FOR LONG-TERM CARE I (2007), available at http://ltc.georgetown.edu/pdfs/natspendfeb07.pdf (reporting that in 2005, United States spending for long-term care came from Medicaid (48.9 percent), Medicare (20.4 percent), out-of-pocket sources (18.1 percent), private insurance (7.2 percent), odier private sources (2.7 percent), and other public sources (2.6 percent)).
495. See Tamm, supra note 283, at 51 (reporting that occupational therapists often conduct such inspections to ascertain "whether and how die home needs to be adapted to the functional impairment" of a home-care client, and that required "changes are a prerequisite for the carereceiver's being given care and rehabilitation in the home"). See generally Rolf Hassler, Sweden, in FAMILY CARE OF OLDER PEOPLE IN EUROPE 241-44 (Ian Philip ed., 2001) (discussing the structure of Sweden's health- and social-care systems).
496. See Agneta Fange & Susanne Iwarsson, Changes in Accessibility and Usability in Housing: An Exploration of the Housing Adaptation Process, 12 OCCUPATIONAL THERAPY INT'L 44, 45 (2005) (noting that "[a]ccording to current Swedish legislation . . . , the full costs for a housing adaptation can be granted for preventive, rehabilitative or long-term care reasons");
497. Margareta Lilja et al., Disability Policy in Sweden, 14 J. DISABILITY POL'Y STUD. 130, 132 (2003) (observing that "[ejvery local authority in Sweden is obliged by law to provide a housing modification grant to people with disabilities").
498. Fange & Iwarsson, supra note 323, at 45; Lilja et al., supra note 323, at 132.
499. Bernt Niva & Lisa Skär, A Pilot Study of the Activity Patterns of Five Elderly Persons After a Housing Adaptation, 13 OCCUPATIONAL THERAPY INT'L 21, 23, 32 (2006) (assessing the value of housing-adaptation grants and referencing related studies on the subject).
500. Peter A. Dunn, A Comparative Analysis of Barrier-Free Housing: Policies for Elderly People in the United States and Canada, 12 J. HOUSING FOR ELDERLY 37, 43 (1997) ("Grant, loan and reimbursement programs are even more sporadic and piecemeal in the United States. The U.S. does not have a comprehensive national grant and loan program which provides money for people to adapt their homes, even for individuals with low or moderate incomes."); STEINFELD ET AL., supra note 280, at 12-13 (noting the patchwork of funding sources for possible home modifications and observing that "[a]ccess to these funding sources can be difficult, and usually requires some type of social service intervention or case management").
501. Dunn, supra note 326, at 43; Louie, supra note 316, at 21 ("Disabled elderly households typically cannot turn to Medicare to help fund accessibility modifications for the home; instead, they must pay for home adaptations with their own savings, or through loans or local grants targeted towards home improvements.").
502. JOSEPHINE LOUIE ET AL., THE HOUSING NEEDS OF LOWER-INCOME HOMEOWNERS 26 (1998), available at http://www.jchs.harvard.edu/publications/homeownership/ louie_mcardle_belsky_w98-8.pdf. The authors note: Despite the pressing housing problems of lower-income owners, very little government housing assistance is directed at meeting their needs. The bulk of federal housing subsidies is directed instead toward the housing problems of lowerincome renters. Millions of lower-income homeowners have neither public subsidies nor the wealth to fund their own home repairs and improvements. Id. at 11.
503. See supra notes 291-292 and accompanying text (describing the general duty clause in the OSH Act).
504. Louie, supra note 316, at 18 (describing the benefits of home modifications to the welfare of disabled seniors).
505. See, e.g., STONE, supra note 46, at 1 ("Finding a qualified, committed [nursing assistant] or home care aide has become a second-order priority; recruiting 'warm bodies' to provide the frontline care has become the primary goal for many nursing homes, residential care providers, home care agencies, community-based care organizations and families.").
506. See supra notes 51-54 and accompanying text (discussing the adverse consequences of high turnover rates among home-care workers).