Meet the Right-Wing Judge Who Just Screwed Over the People Taking Care of Your Grandma

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http://www.alternet.org/labor/meet-right-wing-judge-who-just-screwed-over-people-taking-care-your-grandma



A notoriously pro-corporate U.S. District Court judge in Washington, D.C., has gutted a Labor Department effort to boost wages for one of America’s lowest-paid and growing professions: home care workers for elderly and disabled people.

U.S. District Court Judge Richard Leon, who in 2012 threw out new labeling standards for cigarette boxes, issued two rulings in recent weeks that will let nursing home owners avoid paying minimium wage and overtime for caregivers—allowing management to claim that their workers are “companions” under the law and not caregivers, which allowed the owners to pay less.

“We are deeply disturbed by Judge Leon’s decision,” said Jodi M. Sturgeon, president of the Paraprofessional Healthcare Institute, which seeks to professionalize eldercare and disability services. “After three full years, the regulatory process has run its course, and America’s 2 million home care workers should not have to wait any longer for fair pay.

The case, Home Care Association of America v. Weil, centered around a new Department of Labor rules that were to take effect on January 1. One new rule said that any homecare worker who spends more than 20 percent of their time as a caregiver—meaning they help with daily tasks such as dressing, bathing, toileting, cooking, giving medicine, going to a doctor, shopping, paying bills, cleaning households—would be paid at least the local minimum wage and overtime after working 40 hours a week.

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1. Before I knee jerk, who exempted paid "companions" from minimum wage requirements and why?

No one foresaw the possibility of consequences from that that would be undesirable for the 99%?

And come on, now, which poor or middle class people hire true "companions" today anyway? Especially "companions" who spend even 5% of their time bathing them, dressing them or helping them get to the bathroom? Was that Congress or the Department of Labor? Either way, it wasn't this judge.

This judge may or may not be a POS consistently. But, that is beside the point when it comes to minimum wage laws and exemptions from those laws, which is what this article is about.

In this case, this judge did not rule that caregivers should not be paid minimum wage or that the Constitution says they cannot be paid minimum wage. He ruled only that, in issuing this particular regulation, the Department of Labor had exceeded its authority--meaning the authority given the Department of Labor by Congress.

Obviously, an agency that is supposed to execute the laws of Congress cannot go beyond the authority that Congress grants it.

This judge may well be wrong about whether the agency exceeded its statutory authority. I don't know enough about the law or even about the judge's opinion, to say if the judge was correct or wrong.

If the judge was wrong about the D of L's regulation exceeding the authority that a statute of Congress granted the D of L, the judicial appeals process should correct the mistake of the judge. I do not say that lightly because appealing costs money and I don't know if there is a provision granting legal fees and costs to the ultimate winner of a case like this one. But, if this judge made an error, that's how our legal system works (and Congress can change that, too!).

Even if the judge is wrong and the judicial appeals process doesn't correct his mistake, Congress can--if it chooses. This is not a constitutional decision, where the judiciary has the final say, but only a decision about deciding whether an agency exceeded the authority that a statute passed by Congress gave it.

Why is important to point out Congress's role in this? At least in theory, we have ultimate control over Congress, in that we theoretically vote people in and out of Congress and in and out of the White House. I don't have even theoretical control over judges or employers.