NEW YORK, N.Y.—Five home health-care attendants and two Chinatown community organizations have filed a lawsuit against the state Department of Labor in State Supreme Court, seeking to void emergency rules that allow health-care agencies to keep paying the attendants for 13 hours a day even if they stay in the patient’s home for 24 hours.
The rules were issued last October, after state appeals courts ruled in three separate cases that under the state minimum-wage law, the attendants had to be paid for every hour they were “required to be available for work at a place prescribed by the employer.” The New York State Industrial Board of Appeals declined to overturn the rules in January.
“The emergency regulations from the Department of Labor have forced us to be modern slaves,” Lai Yee Chan, 63, told a rally of about 80 people outside the department’s lower Manhattan offices May 9, speaking in Chinese through an interpreter. The rally was organized by the Ain’t I a Woman Campaign, a joint project of National Mobilization Against Sweatshops and the Chinese Staff and Workers Association.
The protesters chanted “Down with slavery” in Chinese, Spanish, and English.
The Labor Department’s October rules state that there is no requirement to pay “a home care aide who works a shift of 24 hours or more” for time when they’re supposed to be eating or sleeping, paralleling the rule for live-in domestic workers. The LeadingAge NY industry trade group said at the time that it had “been advocating for state agency intervention in this issue and is pleased that DOL has adopted this emergency regulation,” because if workers had to be paid for the full 24 hours, it “could lead to significant changes in costs to home care agencies and Medicaid managed care plans.”
Home attendants said that the agencies that hire them have instructed them not to work taking care of patients after 9 p.m., during the 11 hours they are supposed to be off, and just to call 911 if there’s an emergency such as the patient falling. That’s impossible, they say, because they have to be up regularly to perform routine duties such as changing adult diapers. Instead, they want the agencies—which are paid by the state, through Medicaid—to assign two attendants to do separate 12-hour shifts.
Home attendants said that the agencies that hire them have instructed them not to work taking care of patients after 9 p.m., during the 11 hours they are supposed to be off, and just to call 911 if there’s an emergency such as the patient falling.
The Labor Department did not respond to requests for comment from LaborPress.
“Most of the patients are bedridden,” former attendant Elvia Fernandez told the rally, speaking in Spanish. “We have to turn them every two hours so they don’t get bedsores, and change them.” She said she had to quit because the work had injured her back, wrists, and several other body parts.
“I have to take care of the patient. I can’t just leave them,” Chan told LaborPress after the rally. She was taking care of a woman whose left side was paralyzed, and had to help her to the bathroom five or six times a night, she said.
She said her employer, the Chinese-American Planning Council, fired her after she filed a log reporting that she’d done work after 9 p.m., and that a supervising nurse told her she was “too nervous” for the job. She said she was reinstated after she threatened to sue, but was assigned to a 12-hour shift with a different patient.
The CPC’s press office did not respond to messages from LaborPress.
“I was shocked to know they weren’t getting this money,” says Terry Campuzano. “These aides have to be on the spot. There’s no way they’re getting six hours of sleep.” His 79-year-old mother has dementia, he told LaborPress, and is a “wanderer,” getting up at 3 or 4 in the morning and trying to leave the apartment.
“Without these people, my mother’s in a nursing home,” he added. But split shifts might cause problems too, because she gets agitated if she has to deal with too many different people.
The state minimum-wage law requires workers to be paid for all the hours they work, including those when they are on call, lawyer LaDonna Lusher told the rally, but the Department of Labor has “singled this industry out” as an exception.
The department has scheduled a hearing for July 11 on whether to make the emergency regulations permanent, lawyer Travis W. England told LaborPress. If that happens, he said, the attendants might have to file another suit challenging that too.
