NEW YORK, N.Y.—Wage theft and denial of paid sick leave are common in New York City’s home health-care industry, according to a report released Sept. 5 by the city Department of Consumer Affairs’ Office of Labor Policy and Standards.
The department’s investigation, launched in July 2017, looked at 42 agencies that employ more than a quarter of the city’s roughly 160,000 to 200,000 home-care workers. Based on “interviews with more than 500 workers and an extensive review of documents provided by workers and employers,” it found “pervasive violations” of the city’s 2014 Paid Safe and Sick Leave Law, “significant evidence of minimum wage and overtime violations,” and that many agencies failed to tell workers about the state’s Wage Parity Law, which mandates that workers caring for a Medicaid recipient get at least $16.09 an hour in wages and benefits at agencies with 10 or fewer employees, and $17.09 at larger agencies.
“It’s something we’ve been saying for a long time,” says Helen Schaub, state director of policy and legislation at 1199SEIU, which represents about 75,000 home health aides at 62 agencies. “A lot of folks are not abiding by the law.”
There are more than 1,000 licensed home-care agencies in the downstate area, she explains, which makes it difficult for the city and state to police them. Agencies that underpay workers can thus undercut the “responsible employers” that don’t.
The agencies basically function as “labor brokers,” Schaub adds, providing workers to the managed-care companies that receive Medicaid funds to provide long-term care for the elderly and disabled. At union agencies, the contract specifies what benefits workers receive under the Wage Parity Law, but at nonunion agencies, they have no way to know, as their paychecks don’t list the numbers.
The Department of Consumer Affairs said it has referred two cases “with some of the most widespread evidence” of violations to the state Attorney General’s Office for a joint investigation.
DCA said it began the probe because the home-care industry is the third-largest source of complaints under the sick-leave law, which requires employers with five or more employees who work more than 80 hours a year to get anywhere from three hours to a week of paid sick leave. It found many agencies failed to give employees written notice of those rights, and “widespread denials of sick leave requests, workplace-wide restrictions regarding the use of sick leave, and retaliation when workers tried to use sick leave.” It said it filed 11 cases with the city administrative-law office seeking restitution and fines for such violations, and settled 21, winning the workers an average of about $2,000 each.
Home-care workers are supposed to be paid at least $13 an hour, or $12 at smaller agencies—but there is one gaping loophole in that. “Overnight shifts are common in the home care industry,” the report noted, “and many workers reported being paid for only 13 hours without regard for whether they got any genuine sleep or rest time during the shift.”
That is actually current New York State policy. Home-care workers who spend 24 hours with their client are supposed to get 11 hours off to eat and sleep. But after state appeals courts ruled last year that they should get paid for the full 24 hours, because they frequently have to wake up in the middle of the night to care for clients, the state Department of Labor issued emergency regulations stating that aides who work 24-hour shifts don’t have to be paid during “meal periods and sleep times.” It said this was necessary to “prevent the collapse of the home-care industry.”
The state Department of Labor issued emergency regulations stating that aides who work 24-hour shifts don’t have to be paid during ‘meal periods and sleep times.’ It said this was necessary to ‘prevent the collapse of the home-care industry.’
“If you’re only paid for half your hours, that’s a lot of wage theft,” says JoAnn Lum of the Ain’t I A Woman Campaign, which has helped organize home health aides to challenge the 13-hour rule in court.
“Our members who work 24-hour cases certainly believe they should be paid for it, and we agree with them,” says Schaub. However, she adds, because Medicaid ultimately pays the bills, “if employers are told they have to pay for these hours, the state has to fund it.”
In a July letter to the Labor Department, DCA recommended that if employers are going to pay workers for only 13 hours, they should be required to prove that the workers are actually getting genuine meal and rest breaks. “An uninterrupted five hours of sleep for these workers is rare,” it said. “People have around-the-clock care for a reason; needs arise at all hours of the day.”
The 24-hour shifts are the real problem, Lum contends. Aides who regularly work those hours report chronic sleep deprivation; even when they go home, she adds, “they find they can’t sleep.” She believes this contributes to health issues such as depression, thyroid problems, and injuries sustained while lifting clients. Prohibiting 24-hour shifts, she says, might do more for workers’ health than the relatively small amount of sick leave required by the law.
In any case, Lum is pleased that that the DCA and the Attorney General’s office are looking out for workers in an industry that’s often ignored.
“This is one of the most important jobs there is—taking care of ill and elderly people,” she says. “We’re all going to be there sooner or later.”
