The perfect is the enemy of the good; or why Granny is in an old age home

It's time for me to take aim at the California Labor Commissioner again. And, as I did before, I'll take you on a hypothetical journey through the Brave New World that the California labor laws have created in their unending pursuit of the perfect employee work environment. Imagine two different people. Let's begin with Mrs. Smith. She's a retired teacher and has lived alone since her husband died. She has two loving children, who themselves have children, and who are just getting by. Sadly, Mrs. Smith has been diagnosed with Alzheimers. She is still sufficiently well-oriented to want to stay in the comfortable home that has been hers for so many years, and she really doesn't need a lot of care yet. All that she needs is help getting dressed; help with preparing her food and making sure she eats it; someone to draw her bathwater; a companion on walks, so she doesn't get lost; someone to accompanying her to the restroom if she wakes up confused at night; and supervision to make sure that she takes her daily blood pressure and cholesterol medicines. Pretty simple stuff. Now let's imagine Ms. Jones. She's a 21 year old woman living with her eight family members in a three room apartment in a dangerous slum. She dreams of a better life, in a better community, but social and job opportunities in her neighborhood are slim, to say the least. She's not very skilled, but she's bright, reliable and compassionate. Wouldn't it be nice if Ms. Jones could go and live with Mrs. Smith, and take care of her in all the ways Mrs. Smith needs care. If she was a live-in personal attendant, working a 24 hour day (which includes sleep time), she could get paid California's $6.75/hour minimum wage for each of those 24 hour days spent keeping Mrs. Smith safe and comfortable. That phrase "personal attendant" is an important one -- that's why I highlighted it. If Ms. Jones is a "personal attendant," Mrs. Smith and her family don't have to pay her overtime for her 24 hour day. The quid pro quo for this fact is that Ms. Jones's workload as a personal attendant must be very light.* Ms. Jones cannot be required to spend much, or any time, doing scut work -- yard work, heavy cleaning, even laundry and shopping. She's just to sit and be a companion. This kind of work could net Ms. Jones about $70,000 annually, plus free room and board. In one year, she could make the economic leap out of poverty. If only it were so easy. Did you notice that I mentioned that Ms. Jones would have to make sure that Mrs. Smith got her blood pressure and cholesterol medicines? Even though that's a task any marginally competent person can do, it also happens to be one of the tasks a nurse does. And if it's a task a nurse does, the person doing that task can no longer be called a personal attendant.** And if the employer no longer falls under the personal attendant rubric, the employer no longer gets the benefit of the personal attendant exemptions for in-home wage and hour laws. This means that, to make sure Mrs. Smith gets her pills, Mrs. Smith and her family would have to pay a minimum of $100,000 per year for the same level of care Ms. Jones could easily provide. And it's that $30,000 difference that sees Mrs. Smith moved out of her lovely home and placed in an Old Age Home. At this home, Mrs. Smith is cared for by an ever rotating group of overworked, underpaid, underqualified, resentful employees. She lives in a single grim room, off a hallway that smells of urine. She is surrounded by elderly people in various stages of physical and mental illness. She becomes deeply depressed and she soon dies. Meanwhile, Ms. Jones continues to moulder in her overcrowded apartment, in her economically depressed community. And it's no answer to say that Mrs. Smith's children should just take her into their home. Much as they love their mother, to ask a family with small children, in a small house, on a small budget, to take into their home an elderly woman falling ever deeper into Alzheimer senility is unreasonable. It's especially unreasonable when one considers that the only thing between Mrs. Smith and an optimal living opportunity -- one that is humane and generous for both Mrs. Smith and Ms. Jones -- is the State Labor Division's fanatic drive to create perfect work environments, something it's determined to do even if that means destroying jobs and lives. It's also no argument to say that the California labor rules are meant to protect against callous employers enslaving weak, unprotected workers. After all, we've all read stories that crop up periodically about some evil employer being arrested for doing just that. But of course, those horror stories make the point -- these women are abused despite the fact that these draconian laws are already on the books. They don't do anything to prevent abusive people from, well, abusing. There's no moral to this story, and no advice either. It's a pointless tale about the perfect being the enemy of the good, and the exquisitely calibrated system that sees Mom in a grim home, and nice young women collecting welfare. __________________________________ *You can check out Industrial Welfare Commission order No. 15-2001, which details the rules that cover Personal Attendants, and the rules that do not cover them. You'll see that, while employees normally have to get overtime and double time after the 8 hour per day, 40 hour per week mark, that rule does not apply to personal attendants, provided that they function essentially as "babysitters." **If you're interested in the Opinion Letters from the California Division of Labor Standards Enforcement, see opinion letters 1994.02.03-2, 1994.10.03-2, and 1997.10.21-1 ___________________________________ UPDATE: By the way, if you're interested in a whole book detailing how these kinds of regulations destroy precisely what they're trying to protect, check out Philip K. Howard's book, The Death of Common Sense (see sidebar). Although written some years ago, it remains pertinent.