State’s Top Court Asks If Health Aides Should Get Paid For 24-Hour Shifts
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State’s Top Court Asks If Health Aides Should Get Paid For 24-Hour Shifts

February 14, 2019

By Steve Wishnia

ALBANY, N.Y.—New York State’s highest court heard arguments Feb. 12 on whether home health-care aides who work 24-hour shifts should get paid for the full 24 hours—or only for the 13 hours currently required by state labor regulations.

NY Home health aides denounce 13-hr. pay for 24-hr. work.

A state appeals court, the Appellate Division 2nd Department, ruled in September 2017 that the 13-hour rule was neither “rational nor reasonable.” The rule gives aides who don’t live with the patient but stay at their home overnight eight hours off for sleep and three hours for meals. But in practice, the court held, the aides had to be available for work at any time the patient needed care. That, it ruled, meant they were paid less than minimum wage for the shift. 

The two home-care agencies involved appealed that ruling, backed by the state Department of Labor—which responded to the appeals-court decision by issuing an emergency regulation reaffirming the 13-hour rule.

In the arguments before the state Court of Appeals, New York Health Care lawyer Sari E. Kolatch contended that the Appellate Division had “abused its discretion.” Under the 13-hour rule, she said, aides were only paid for “those hours which they’re working,” and while they had to remain on the premises for 24 hours, they were not required to provide “around-the-clock care.”

Asked what would happen if a patient needed help going to the bathroom in the middle of the night, she replied that there was “no evidence” that aides were not getting eight hours sleep a night.

Home-care workers have long disputed that. “Patients receive 24-hour care because they need it,” Daisy Castillo said in a statement released by the Ain’t I A Woman? Campaign. “Some have Alzheimer’s, some have cancer, some are bedridden. We are taking care of patients all day, all night. I never slept all night. You’re checking the patient every two hours. You’re vigilant, ready to help them.”

We are taking care of patients all day, all night. I never slept all night. You’re checking the patient every two hours. You’re vigilant, ready to help them. — Daisy Castillo, Ain’t I A Woman? Campaign

“If the patient needs their help, they have to get up right away,” Jason Rozger, lawyer for the plaintiffs in the class-action suit Andryeyeva v. New York Health Care, told the seven judges. “Any time you’re sleeping or eating, you’re available.” He said there was no evidence that aides were actually getting time off, because “it is undisputed that the industry never tracked sleep or meal time.”

“Ms. Moreno slept on a chair in her client’s room,” said Michael Sweeney, lawyer for Adriana Moreno, lead plaintiff in the second class-action suit, Moreno v. Future Care Health Services. “‘Available for work’ means you’re there and you have to be available for work.”

“We hear these stories routinely,” LaDonna Lusher, a lawyer who frequently represents home health aides, tells LaborPress. “It’s really common for them to have to sleep in armchairs next to the patient.” She argues that as aides are required to be at the workplace for 24 hours straight and that care protocols often dictate that they have to turn the patient over every couple hours at night, they are effectively on duty for the full 24 hours.

Department of Labor attorney Steven Wu argued that the 13-hour rule is perfectly rational, it just needs to be enforced. The department made the judgment that workers on 24-hour shifts have to sleep and eat, he told the court, and it’s reasonable to conclude that employers are honoring that. Responding to Justice Leslie Stein, he said it’s “unclear” whether a chair next to the patient’s bed would qualify as the “adequate sleep facilities” required by state regulations.

In its amicus brief supporting the home-care agencies appeal, the department said the Appellate Division’s ruling “severely disrupted reasonable and settled expectations” for both employers of home health aides and the state’s Medicaid program, which covers the majority of spending on home health care services in New York. It argued that aides should not have to be paid for the full 24 hours they’re in the patient’s home, just for the 13 hours they’re officially on duty and for any time their sleep or meal time is interrupted by work.

“Disrupted expectations” more or less translates as “it would almost double labor costs.” Last March, the Long Island law firm Littler Mendelson, which filed an amicus brief on behalf of the Home Care Association of New York State trade group, wrote that since the Appellate Division struck down the 13-hour rule, “the home care industry has faced collapse.”

Lusher says she expects the Court of Appeals ruling to “comment on the definition or lack thereof of ‘available for work.’” Another issue is how much deference the court should give the Department of Labor, and whether the opinion letter that defined the 13-hour rule merits as much deference as a more formally established regulation would. 

The court might also consider more technical grounds, such as whether the group of aides who worked 24-hour shifts qualified for a class-action suit. The home-care agencies argue they did not, on the grounds that it would have to be determined whether each individual plaintiff “received sufficient time for sleep and meals” on each shift. The Labor Department is asking the Court of Appeals to send the case back to the lower courts to consider whether a class-action suit should be pursued on different grounds, such as whether the agencies had a systematic policy of not providing a place where aides could get at least five hours of uninterrupted sleep.

The lower courts all held that the aides had legitimate claims as a group, says Lusher. The sad thing, she adds, is that the need for home health aides is growing as the population of elderly people increases, and the immigrant women who make up the bulk of the workforce earn barely minimum wage even when they get paid for all the hours they work.

February 14, 2019

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