Ailing NYC woman at center of Supreme Court case over home care

Evelyn Coke picked a tough line of work when she came to America.

For more than 20 years, the Jamaican immigrant bathed, changed, and fed the elderly and infirm, often staying with her clients for days on end. Although Coke liked helping people, she felt she was being "robbed." No matter how often she complained, she says, she couldn't persuade her employer to pay her for all the hours she worked.

Now Coke, herself elderly and infirm, is hoping for restitution. She has sued her former employer in a case that will be argued before the Supreme Court on Monday and could affect the livelihoods of the nation's 1 million home care aides, whose industry is exempt from having to pay overtime.

Coke, 73, is challenging a 1975 Labor Department regulation that exempts the industry from protections of the Fair Labor Standards Act. The law requires payment of "time and a half" for more than 40 hours of work in one week.

"I'm glad that it's come to everybody's attention," Coke, who raised five children on her own, said in an interview Thursday at her home in Queens. "People are supposed to get paid when they work."

Ruling in Coke's favor, the 2nd U.S. Circuit Court of Appeals invalidated the Labor Department rule, saying it is inconsistent with congressional intent and other labor department rules.

Paying overtime would cost billions, the home care industry says.

In New York City, the annual cost of the Medicaid-funded Personal Care Services Program would rise by at least $250 million if the appeals court decision is allowed to stand, the city says. The Personal Care Services program pays 90 private companies to send 60,000 home attendants to the homes of low-income elderly and disabled.

Coke's former employer, Long Island Care at Home Ltd., says it would experience "tremendous and unsustainable losses" if it had to comply with federal overtime requirements.

The Bush administration and the company that employed Coke are aligned against her.

If Congress had wanted to apply the law's wage and overtime provisions to such workers, "it easily could have done so," the Bush administration said in papers filed in the case. Instead, Congress assigned the secretary of labor the task of deciding the issue, the administration added.

By exempting home care workers from overtime pay, the government was trying to make the services accessible to as many elderly and disabled people as possible, according to court papers filed in the case by employers organizations.

Earnings for home care workers "remain among the lowest in the service industry," says the Bureau of Labor Statistics, yet demand for such workers is expected to explode with the aging of the baby boom generation.

Home care aides are the key to the independent life senior citizens want, but lack of adequate pay is fueling turnover rates of 40 percent to 60 percent annually, says the Service Employees International Union, which represents hundreds of thousands of such employees. The union says there are waiting lists in some states to receive care at home instead of being sent to a nursing home.

Ten civil rights groups are particularly incensed, pointing to historical racism that spilled over into the Fair Labor Standards Act, starting with Congress' refusal in the Depression to grant wage and hour protection to workers like Coke. Half of home care workers are minorities, according to 2000 census data.

To gain passage of the Fair Labor Standards Act in 1938, "staunch segregationists who controlled the levers of congressional power" excluded agricultural and domestic service workers from coverage, the civil rights groups said in a court brief supporting Coke.

Most of those excluded home care workers _ those working for companies _ were brought under the law's protection starting with Democratic administrations in the 1960s.

In 1974, Congress broadened the law to cover workers in a variety of fields. However, the Labor Department took the opportunity following the 1974 amendments to make a change that reversed Fair Labor Standards Act coverage for home care workers employed by for-profit and not-for-profit companies.

Employees working for companies that provide "companionship services" in homes "are exempt from the act's minimum wage and overtime pay requirements," the rule states.

Coke's lawsuit arose from the fact that she consulted an attorney some years ago after being struck and injured by a car. The lawyer noticed she hadn't been paid for all the hours she worked when he checked some of her pay stubs.

As she awaits the Monday arguments, Coke, who suffers from diabetes and must undergo dialysis due to kidney problems, said she's more than ready to have the case end _ in her favor. And despite what she feels was unfair treatment by her employer, she says she has no misgivings about going into home health care.

"I don't regret taking care of old people," she said.

The case is Long Island Care at Home Ltd. v. Evelyn Coke, 06-593.

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Associated Press writer Pete Yost in Washington contributed to this report.