NEW YORK, N.Y.—Home health-care workers who stay with their clients 24 hours a day appealed to the New York State
Industrial Board of Appeals Jan. 5 to order them paid for the full shift, urging it to void an emergency regulation issued by the state Department of Labor last October that says they should only get paid for 13 hours a day.
The department issued the regulation after a second state appellate court ruled in September that the practice of paying workers for only 13 hours of a 24-hour shift was illegal, that if the worker was always in the client’s home and on call, their employer had to pay them for the full 24 hours. The rule, which applies only to home-care workers, affects up to 300,000 aides who work for agencies the state hires to care for elderly and disabled patients on Medicaid, lawyer Carmela Huang told the appeals board. The workers don’t live with the patients, but stay over at their homes so they’re not left alone at night.
“We deserve justice. We deserve to get paid for 24 hours,” Justa Barrios, who has been working 24-hour shifts for 13 years, told a rally organized by the Ain’t I a Woman? campaign before the hearing, speaking in Spanish through an interpreter. The about 30 home-care workers who turned out were overwhelmingly women and immigrants.
Labor Department general counsel Pico Ben-Amotz told the five-member appeals board that the department had the right to defy the Appellate Division 2nd Department’s ruling because it was a “misinterpretation” of the state’s minimum-wage law. The state labor commissioner has the power to interpret that law, he argued, and in this case decided that workers should not be paid for “uninterrupted” time they spend eating or sleeping, as has been the practice for decades.
There’s no such thing as uninterrupted time when you’re dealing with seriously ill patients, says Chan Lai Yee, a 63-year-old immigrant from China’s Guangdong Province who’s been working 24-hour shifts for 10 years.
“When the patient cannot breathe, you have to check on them,” she told LaborPress, speaking in Chinese through an interpreter. “When they stop breathing, you have to call 911.” If the patient is incontinent, the aide has to get up to change their diapers. And patients with Alzheimer’s disease sometimes don’t sleep.
“They talk randomly, they yell,” Yee says. “They can fall when they walk around at night.”
For this, she makes minimum wage, now $11 an hour, for a total of about $27,000 a year. If you count the hours she doesn’t get paid for, she says, it works out to about $5 an hour.
Ben-Amotz also argued that the emergency rule was necessary because the court rulings meant agencies might be liable for up to six years of back pay, “which could bankrupt them.” Given the limited amount of Medicaid funds available, he added, there was “a real concern that agencies would stop providing workers for these cases” if they had to pay aides almost twice as much.
There is “no doubt” that paying aides for the full 24 hours will cost more, Carmela Huang told the board, but the state has alternatives to “depressing the wages of health-care attendants,” such as increasing the amount it pays the agencies. More than half the state’s 300,000 home-care aides receive some form of public assistance, she added, and 20% live below the federal poverty line.
The rule’s rationale is “that they should be allowed to continue practices in place since the ’60s,” she told LaborPress before the hearing. “The reality is that most of these workers don’t ever get to sleep. They’re constantly on alert.”
Shirley Rand, director of the National Organization for Women’s domestic-workers task force, says she got personally involved when her parents needed home care and “I saw the pitiful conditions they work under.” When her father developed Alzheimer’s and the aide already taking care of her mother had to take care of him as well, they gave her a 50-cent-an-hour raise, “for twice as much work.”
Two reasons wages are so low, she says, are that the vast majority of the workers are women and immigrants, so the state believes it can get away with paying them less, and that Medicaid pays the managed-care agencies on a per-patient basis, so they have an incentive to hold costs down.
The board will decide whether to annul the rule by Jan. 23, says Huang.