September 15, 2016
By Steven Wishnia and Joe Maniscalco
New York, NY – Imagine working a 24-hour shift and getting paid for only 13 hours of it.That’s what the home health attendants who take care of people that Medicaid has approved for 24-hour care do. They stay in the patient’s home around the clock, but under their contract from the 1199SEIU health workers union, they are supposed to have 11 hours off—8 for sleeping and 3 for meals. But it doesn’t work that way in real life, they say. They can’t leave the patient alone all night, because they have to do tasks like helping them to the bathroom.
“You have to change the diaper every two hours, change their position, see if they’re still breathing,” says Leticia Panama Rivas, 39, an attendant for eight years who quit last year after she suffered a back injury. “You work 24 hours. In case something happens to the patient, who is going to be blamed?”
Panama Rivas was one of about 15 people who protested last Thursday, September 8, outside the Lower Manhattan offices of First Chinese Presbyterian Community Affairs Home Attendant Corp. — one of the numerous nonprofit agencies that hire home health attendants paid for by Medicaid. She is one of three plaintiffs in a class-action suit filed against First Chinese on September 2, alleging that not being paid for their full 24-hour shifts is wage theft and violates minimum-wage laws. The suit also alleges that they also did not receive overtime pay or “spread of hours” compensation, one additional hour at minimum wage when they work more than 10 hours in a shift.
“It’s really outrageous that they not be paid for all the work they do,” says JoAnn Lum of the National Mobilization Against Sweatshops, one of the groups in the Ain’t I a Woman? Campaign, which organized the protest.
Home attendants seeking hundreds of thousands of dollars in unpaid wages have also brought a class-action lawsuit against the Chinese-American Planning Council, another nonprofit agency that provides home care. As members of 1199SEIU, they say that the union should stop pushing mandatory arbitration, and do more to support their efforts directly. An online petition directly calls on 1199SEIU President George Gresham to oppose mandatory arbitration and forced overtime.
“You have to answer our group of workers’ questions and solve the problems as soon as possible — not to stop us from going to court,” 63-year-old home attendant Lai Yee Chan told LaborPress. “It is our right to choose to go through the courts. The president shouldn’t force us to go through arbitration.”
The union, however, argues that due to the constraints of the Medicaid reimbursement system — and in the interest of avoiding lengthy legal battles — its energies are best spent letting the arbitration process play out and on trying to raise the minimum wage for all workers.
“We understand that the constraint here is the Medicaid funding and the reimbursement,” said Helen Schaub, 1199SEIU’s New York state policy director. “Because [24-hour care] is eight percent of cases, we have focused our efforts in terms of increasing Medicaid reimbursements and on increasing the hourly wage for all hours, which is why we focus so much on the Fight for $15. Home-care workers will be getting the equivalent of $19 an hour between their wages and benefits over the next three years. And that is going to cost the state about $1 billion in Medicaid reimbursement.”
Home attendants like Chan, however, aren’t convinced that’s the best strategy.
“Of course, we want $15 an hour,” Chan said. “At the same time, I’m worried about my health benefits — that’s the question mark. Wages are not keeping pace with the cost of living, and that’s my worry. The wage increase might not be as good as it sounds.”
Lawyers representing workers in the two class-action suits say they could involve 500 or more workers claiming unpaid wages.
Michele Moreno, one of the lawyers representing the three workers involved in the suit against First Chinese Presbyterian Community Affairs Home Attendant Corp., says they should learn more on discovery, if they get First Chinese to turn over payroll records. Lum says “hundreds” of home attendants from 15 to 20 different agencies have come into the Lower East Side Worker Center’s Chinatown offices over the last several months to complain about working 24-hour shifts without getting paid.
The home attendants also “haven’t gotten a raise in eight years,” she adds. According to the lawsuit, they are paid between $10 and about $10.50 an hour for weekday shifts and $11 to $12.50 on weekends.
The patients they care for are sick enough to be approved for 24-hour care through a “very rigorous process,” says Irene Shen of the Ain’t I a Woman? Campaign, but the agencies often retaliate against workers who don’t want to do 24-hour shifts by cutting their hours. “They switch you to maybe one day four hours, another six hours,” says Panama Rivas.
“I did as many as 96 hours a week,” plaintiff Alvaro Ramirez Guzman said in Spanish at the protest. “It’s a lie we could sleep. We worked hard for this. We should be paid. We need to be paid for all the hours we did.”