WA Supreme Court Deciding if Live-In Caregivers Deserve Minimum Wage

On Tuesday, the Washington State Supreme Court heard oral arguments on a case that could decide whether live-in caregivers who take care of elderly and disabled people in adult family homes should be paid our state’s minimum wage.

Counsel for the defense, Albert Hensel Kirby, began his opening remarks defending his client’s right to pay workers poverty wages by saying, “I’m here today because healthcare is complicated.”

Well, sure, but this case is not—at least on first glance.

In court filings, six plaintiffs who worked for Assurecare Adult Home LLC testified that they often worked up to 24-hour shifts with no overtime pay or sick leave, taking care of vulnerable patients who often need to be physically lifted up and assisted, were forced to sleep in hallways and on floors and frequently get woken up in the middle of the night for emergencies, and for this exhausting work often ended up making as little as $2 to $3 per hour—less than a quarter of the state minimum wage of $16.66.

Represented by the legal nonprofit Fair Work Center, these plaintiffs sued in King County Superior Court for labor rights violations. It was decided on summary judgment in favor of the plaintiffs, but was passed up to the Washington State Supreme Court, because it addresses constitutional questions.

The case challenges the decades-old Washington state minimum wage exemption for live-in caregivers that has allowed companies like the plaintiff Assurecare Adult Home to pay these workers a flat daily amount around $120 per day for a 12-hour shift that frequently stretches to 16 or 24 hours rather than an hourly rate.

Jeremiah Miller, lead plaintiff counsel and Legal Director of Fair Work Center, also alleges that Assurecare Adult Home falsified work records, paying workers for six days per week while demanding they work every day. The work literally never ends.

Miller finds the live-in exception “particularly troubling,” he says. “One of the things that is just true, particularly about this living exemption, is the legacy of the slavery system that existed in this country, and these arguments about, ‘Oh, well, they have a place to live’ really echo the kinds of things people said about slavery. Like, ‘We’re doing them a favor.’”

The defense’s briefs echo this sentiment. “Caregivers who live in the adult family homes where they work receive free room and board,” the document states.

You may wonder who works these difficult, low-paying jobs. Who do you think?

According to a 2021 study by the Center for Economic and Policy Research, health aides like live-in caregivers are disproportionately non-white and non-male. Black women account for nearly 30 percent of the industry despite being only 6 percent of the U.S. labor force overall.

“You can draw a straight line back to an outdated social order that had permanent underclasses composed of racial or gender or ethnic minorities,” says Miller.

“Addressing industry-specific exclusions is about bringing those workers into the basic protections that other people have, but also it’s about changing the story, wondering if those exclusions should even exist in the first place,” says Danielle Alvarado, Executive Director of Fair Work Center.

Given these working conditions, especially in consideration of the historical (and not so historical) inequities people from these backgrounds have had to endure, this case seems like a slam dunk.

Hold on.

In oral arguments Tuesday, the debate tried to reconcile two parts of Washington law:  Washington State’s Minimum Wage Act, which states, “any individual whose duties require that he or she reside or sleep at the place of his or her employment or who otherwise spends a substantial portion of his or her work time subject to call, and not engaged in the performance of active duties”; and Article 2 Section 35 of the state’s constitution, which states that “the legislature shall pass necessary laws for the protection of persons working in mines, factories and other employments dangerous to life or deleterious to health.”

The crux of this case, and the future of these workers across the state, lies in those final words.

On Tuesday, Washington Supreme Court justices grilled both sides on whether live-in caregiver work reaches that threshold of “dangerous to life or deleterious to health.”

Justice Sal Mungia took center stage when speaking to defense counsel Kirby.

“Your own expert said it’s no secret that the healthcare industry is prone to injuries, told her story of having a back injury where she herniated a disc, and she said, ‘my story is not atypical,’” Mungia said. “Each year, there are injuries to those who are providing care, and the Washington State compensation claim data indicate that workers in risk class 6509—which includes adult family home workers—have a 40 percent higher rate of allowed claims than do all industries overall in the healthcare industries…is it your client’s position that these working conditions are not deleterious to the health of their workers?”

“We actually dispute that characterization of that evidence,” Kirby responded, but failed to refute his own expert’s testimony.

Afterward, plaintiffs’ counsel Miller was tasked with providing data that demonstrates these live-in adult home caregiver working conditions are in fact dangerous—not necessarily as dangerous as milking cows on a farm, but backed up by data nonetheless to prove its danger and align with the language in Washington’s State Constitution.

“I would say you don’t have statistics,” Justice Barbara Madsen said. “First off, we don’t know how many people in that profession are live-in and therefore fall within this live-in exception. And two, we do not have any statistics that tell us what is different about the risk factors of someone who is live-in versus those who are not live-in.”

In court filings, the plaintiffs did provide an expert who said that the risk of injury and illness increased with overtime work and lack of sleep common for live-in caregivers, and that caregivers without nursing degrees like those represented in this case were significantly more likely to be physically assaulted by residents. The plaintiffs’ counsel also cited a study that concluded workers underreport illness and injury for fear of disciplinary action, perception of laziness, peer pressure, and concern of retaliation.

But even that is somewhat soft data. Where are the numbers?

“Nobody tracks them,” Miller told The Stranger. “It’s a real issue for this kind of thing. What happens to people below the poverty line is largely uninteresting to people so there just isn’t a lot of data.”

So the question is: will our state’s Supreme Court, understanding this live-in caregiver work to be necessary and important, take the leap to accept soft data as proof of its dangers?

“Of course we want people to have access to housing where there’s onsite support, but that doesn’t have to be a zero-sum game that comes at the cost of the wellbeing of the person doing that job,” says Danielle Alvarado.

This imperfect case could right a societal wrong, but it will be challenging.

What good thing isn’t?