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More Home Health Aides Urged To Tell Theirs Stories Following Devastating Court Ruling

April 8, 2019

By Steve Wishnia

ALBANY, N.Y.—The New York State Court of Appeals ruled March 26 that home health aides only have to be paid for 13 hours of 24-hour shifts they work. The 5-2 decision reversed lower-court rulings that they had to be paid for the full 24 hours.

Home health aides rally for wage justice earlier this year.

At issue was the state Department of Labor’s interpretation of minimum-wage law, which said health aides who spend 24 hours in a patient’s home were entitled to eight hours off to sleep and three hours for meal breaks, and they don’t have to get paid for that time. Aides organized by the Ain’t I A Woman campaign challenged that, arguing that in reality they don’t get even five hours of uninterrupted sleep, because they have to wake up in the middle of the night for tasks such as helping patients go to the bathroom.

The majority opinion, by Judge Jenny Rivera, held that courts are required to “defer to an administrative agency’s rational interpretation of its own regulations in its area of expertise,” as long as they are not “irrational or unreasonable.” The Department of Labor, it said, “has determined that a patient may need an aide on site around-the-clock without requiring adult care services for all 24 hours of the day,” and that in its “highly fact-specific, industry-specific interpretation,” it had “reasonably determined that home health care aides are not ‘on call’ when asleep and certain conditions are satisfied.” 

“This decision legitimizes the 24-hour shift and makes it possible for agencies to have workers do 24 hours and only pay them for 13,” JoAnn Lum of the Ain’t I A Woman Campaign told LaborPress.

Judge Michael J. Garcia used similar language in his dissent. The ruling, he wrote, allows “home health care aides to be paid an hourly rate less than minimum wage,” and that “will have profound and far-reaching ramifications for a vulnerable and often mistreated workforce.”

The Department of Labor standard, he said, held that while health aides are “on call” for the full 24 hours, they are not technically “available for work” during their sleep time and meal time, so “therefore they need not be paid for those periods.”

But the non-residential home aides who filed two lawsuits challenging that rule, he added, contended that they “routinely do not receive meal breaks or adequate time for uninterrupted sleep, as their patients require assistance throughout the shift.” One employer’s orientation manual, he noted, states that “Patients are never to be left alone!” 

Judge Garcia accused the court’s majority of creating a standard of “deferring to an agency’s construction of a regulation solely because the agency wrote it.” 

The majority opinion acknowledged that the plaintiffs’ allegations “paint a picture of rampant and unchecked years-long exploitation,” and that the aides “rarely received required sleep and meal time during 24-hour shifts”; they “were expected and required to attend to patients numerous times each night”; and their employers “failed to track actual hours worked or make a serious effort to ensure adequate sleep and meal times, as required by law.” 

However, it concluded that it was up to the Labor Department and the Legislature, “not this Court,” to consider whether the 13-hour rule was “a viable methodology to ensure employer compliance with the law and proper wage payment.”

That, says Lum, “makes even more urgent the need for legislation to say that this 24-hour workday is illegal.” The Ain’t I A Woman Campaign’s next move will be pressing the Legislature to mandate that if patients need 24-hour care, it should be given by workers doing shifts of no more than 12 hours.

If firefighters get paid for the time they spend in a firehouse waiting for an alarm to come in, Lum asks, why shouldn’t home-care workers get paid for time when they’re supposed to be sleeping, but have to wake up to change a patient’s diaper? “These are women doing the work,” she answers herself. “Caregiving is devalued.”

The court’s decision leaves open the possibility that the aides could file a class-action suit against the 13-hour rule, but that would be dicey. Legally, says Lum, the burden of proof is on the employer to prove that workers got adequate sleep and meal breaks, and they generally haven’t kept good records. But practically, it would require workers to provide convincing evidence that they weren’t getting the mandated five hours of interrupted sleep.

That is why the campaign is inviting workers to come forward and tell their stories.

“We have to fight for this,” Lum says. “It wouldn’t be an issue if we could change the law.”

April 8, 2019

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