The Court and Health Care Workers

The Supreme Court just ruled 9-0 that home health care workers aren't entitled to overtime pay under the Fair Labor Standards Act of 1938, a significant blow to low wage workers generally.

There are many ugly aspects to this story, which the press is treating as just another blip. First, around half of home health care workers are minority and over ninety percent are female. The old double standard long condemned by feminists seems to be active here. Women are the "care givers" the "homemakers" without whom society cannot stand. Yet this labor, praised and put on a pedestal, is not seen as labor, not valued as labor, and women are expected to work for less and take it, because that is what being a "true woman" is all about--what scholars used to call "the cult of domesticity."

U.S. Labor law, which the justices were in effect sustaining, is very much below average when compared to the rest of the developed world, and the laws themselves, which were largely enacted during the great labor and especially CPUSA led upsurge of the 1930s, were written by a Congress in which "conservative" Southern white supremacy Democrats played a powerful role because of their "seniority" (it helped that they weren't running in competitive elections. The legislation excluded farm workers, domestic workers, and others (African Americans,other minorities, and women were greatly over-represented in the excluded categories) in order to keep labor generally and Southern labor particularly cheap.

From the 1940s to the early 1974s, more and more workers were included under this legislation, which was of course strengthened and augmented by civil rights legislation and affirmative action in the 1960s. But things have gotten steadily worse over the last thirty years (the act which was at question here was a 1974 act whose express purpose was to include more workers in terms of benefits and protection, even though as Justice Ginsburg noted, it in this case was ironically being used by the government to exclude workers).

The unions involved and prominent progressive Democrats have criticized the ruling and promised to work to include home health care workers, which of course is good. But much more is needed. First, the overall health care industry has to be transformed from a private industry to a public health care system, as has been done successfully in all other developed countries. Home health care workers are a part of that industry and the idea that those who deal with the most vulnerable people in our society, people who literally cannot take care of themselves, should be denied the basic benefits that the majority of American workers have, not to mention their own health care and pension rights, should anger working class and progressive people as much as the existence of largescale homelessness in the richest nation on earth should.

U.S. labor law, with its exclusions and exemptions which make sense only if one wants a cheap labor country swimming in an ocean of debt, also has to be transformed so that it is at the very least "competitive" with present-day labor laws in the European Union, by no means ideal but much better than what currently exists in the United States.

This can only happen if we work steadily to elect a pro labor progressive Congress and national administration in 2008, an administration which will begin to both reverse the reactionary policies of the last three decades and also enact in regard to health care legislation which today is more than a half century overdue.

As a postscript, such a government would also be ready to appoint progressive Supreme Court justices who would vote to expand workers rights, not the centrists and moderate liberals who joined with the far right in this case to deny home health care workers basic rights.

--Norman Markowitz