Brooklyn Law Review


Home care for the elderly and disabled is a rapidly expanding industry in which structural and regulatory factors contribute to worker vulnerability and exploitation. Systemic exclusion from core federal employment and labor laws, as well as many state and local regulations, results in minimal consequences for employers who violate standards. Despite recent movement at the federal level to create a “new mindset” of rights and regulations, home care workers must be equipped with creative ways to enforce these new rights and to challenge existing gaps in enforcement. With the understanding that two-thirds of the home care industry is financed by tax dollars, primarily through Medicare and Medicaid, this article advances three innovative legal bases for deterring wage theft and recovering unpaid wages.

First, the article considers whether wage theft by a Medicare or Medicaid participating employer may trigger liability under the qui tam provision of the False Claims Act. Second, the article considers whether the receipt of these tax dollars imposes fiduciary duties on employers and whether this “employer-as-fiduciary” theory gives rise to viable claims by workers (and consumers and taxpayers) when employers illegally underpay or misclassify their employees. Lastly, this article suggests leveraging the authority of the Department of Health and Human Services Office of the Inspector General to exclude home care employers from participation in federal health care programs upon an administrative finding of wage theft. Recasting wage theft in the home care industry as a “public larceny” could have ramifications that extend well beyond the immediate loss of wages. When wage theft goes unchecked, ethical employers who comply with legal standards are forced to compete with unscrupulous competitors whose law breaking affords them an economic advantage. The ability of the home care industry to meet the growing demands of our aging population depends on a system of enforcement that helps reduce staffing turnover and ensure a high quality of care. Given the persistent limitations of federal and state law in combating wage theft, the three strategies proposed in this article have the potential to break new ground in enforcing standards and improving working conditions in this critically important and expanding industry.