Two interesting news items regarding caregivers have recently come to our attention. The US Department of Labor (DOL) announced an initiative focused on wage theft affecting healthcare workers. In a major policy announcement, the US Equal Employment Opportunity Commission (EEOC) defined “caregiver discrimination” and addressed the many subtle, but illegal ways caregivers can suffer discrimination.
Wage Theft in Healthcare
Home health care workers can suffer wage theft, just like anyone else. The DOL has announced an initiative to protect healthcare givers’ wages and rights. Here are two examples of how caregivers’ rights can be violated:
- Fifty Tennessee workers misclassified as independent contractors by a home healthcare service provider received $358,675 in back wages to resolve overtime violations. In this case, the wages were lost to an improper categorization of the workers as “independent contractors.” The DOL has identified the misclassification of workers as independent contractors as an increasingly common violation.
- The DOL recovered $1,218,320 in back wages for 202 healthcare workers. The affected workers were paid straight time for all work hours, even when they worked over 40 hours a week. Several were also paid for their “scheduled hours” and not the actual hours worked, leading to minimum wage and overtime violations.
The EEOC has updated its 2007 guidance concerning circumstances where discrimination against caregivers might constitute unlawful disparate treatment.
While “caregiver” is not a protected class per se, the EEOC has adopted the term “caregiver discrimination” and explains:
“Caregiver discrimination violates the laws enforced by the EEOC if it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, national origin, disability, age (40 or older), or another characteristic covered by federal employment discrimination laws. Caregiver discrimination also is unlawful if it is based on the caregiver’s association with an individual with a disability, or the race, ethnicity, or other protected characteristic of the individual receiving care.”
Here are some examples the EEOC gives of caregiver harassment related to employees’ pandemic-related caregiving responsibilities:
- Disparaging female employees for focusing on their careers rather than their families during a traumatic event such as a pandemic;
- Accusing female employees, without justification, of being preoccupied with keeping their families safe from COVID-19, distracted from their professional obligations, and insufficiently committed to their jobs;
- Criticizing or ridiculing male employees for seeking to perform, or performing, caregiving duties, such as taking leave to care for a child who is quarantined after potential COVID-19 exposure, or limiting overtime or overnight travel, based on gender stereotypes of men as breadwinners and women as caretakers;
- Asking intrusive questions or making offensive comments about gay or lesbian employees’ sexual orientation after they request leave to care for their same-sex spouse, partner, or ex-partner who has COVID-19 symptoms;
- Insulting Asian employees caring for family members with COVID-19 because COVID-19 was first identified in an Asian country;
- Assigning unreasonable amounts of work or imposing unrealistic deadlines on employees of color because they requested or received leave for pandemic-related caregiving purposes;
- Questioning, without merit, the professional dedication of employees caring for individuals with disabilities who are at higher risk of severe illness from COVID-19, or mocking such employees on that basis for taking pandemic preventive measures to avoid infection;
- They were stating that older employees caring for their grandchildren should be receiving care, not providing it, given the employees’ age, or asking whether the recipient of care is “worth the risk,” given older individuals’ higher risk of severe illness from COVID-19.
If you believe that the demands of your caregiving responsibilities have influenced your employers’ or prospective employers’ decisions about you, you should seek advice.
If you or your fellow workers have concerns about not being paid correctly or that you have suffered retaliation or harassment for raising your concerns, you should seek advice.
At Pelton Graham, we get results – we don’t take every case, but if we accept yours, we promise we’ll do our best to bring you the best possible outcome.
If you have any questions regarding your rights as an employee, applicant, independent contractor, or anything related to the workplace, contact us for a no-obligation, no-cost consultation by telephone, video conference, or in-person at our nearest office.