Asked what she does for the elderly woman whose Hell’s Kitchen apartment she works in every Tuesday through Thursday, Maria Gotay’s answer is simple: “I do everything for her,” she says in Spanish.
Gotay, who at 75 is herself a senior citizen, prepares and serves food to her bedridden patient, adjusts her position every couple of hours so she doesn’t get bed sores, changes her diaper, and cleans the apartment. Gotay says she gets up several times a night to check on her.
Gotay’s children are now grown and, having worked as a home health aide at the nonprofit First Chinese Presbyterian Community Affairs Home Attendant Corporation since 2004, she is accustomed to spending days at a time away from her husband in the Bronx. “Being away from home might be more difficult for someone younger who has children,” says Gotay, who arrived in the U.S. from Honduras about 50 years ago.
What Gotay refuses to accept, however, is the fact that she doesn’t get paid for all the hours she works.
Like other home care employers across the state, the agency Gotay works for follows the guidance of the state Department of Labor, which states that home care workers can be paid for just 13 hours of a 24-hour shift. The 13-hour policy is based on the assumption that workers are getting eight hours of sleep—at least five of which are uninterrupted—plus three hours for meals during each shift. Yet home care workers on 24-hour shifts say they routinely have to work through these required breaks without extra pay.
In recent years, the aides have sued their employers in more than 145 class-action lawsuits challenging the 13-hour policy, and Gotay is one of thousands of workers who stand to be compensated for unpaid wages.
The highest court in the state is now deliberating on two of those cases. Lower courts have ruled in favor of the workers, saying that they should be paid for every hour on the job; if the Court of Appeals reinforces those rulings, it could set a precedent for other cases and lay the groundwork for the 13-hour policy to be abolished.
But the long-term care system in New York is largely government-funded, and in order to make meaningful changes, Governor Andrew Cuomo’s administration has to be on board. When it comes to the 13-hour rule, the state Department of Labor has argued that it’s necessary to preserve the status quo in order to “prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home.”
The home care industry’s reckoning over unpaid hours comes at a time when the state is already struggling to get costs under control. Home care accounted for about $9.3 billion of the roughly $70 billion Medicaid budget in fiscal year 2018, with the bill split between the state and federal governments.
Home health aides are among the fastest-growing occupations nationwide. There were 239,500 employed in New York state in December 2018, up from 99,800 a decade ago. Most work in New York City, where 93% are women and 79% are immigrants, and get paid minimum wage, which is now $15 an hour in the city. Yet, the number of home care workers still isn’t growing fast enough to meet the demand. The shortage of home care workers is only forecast to get worse in the coming years.
Medicaid, the state-run, government-funded insurance program for low-income residents, pays for the bulk of 24-hour home care in New York—a level of care typically reserved for people with advanced Alzheimer’s, paralysis resulting from a stroke and other debilitating conditions. If the 13-hour rule is struck down, it could not only raise the cost of providing that level of care moving forward, but also make home care employers liable for back wages that they say could amount to billions of dollars and bankrupt the industry that elderly and disabled New Yorkers rely on to remain at home.
That is, unless the state—which has urged employers to continue following the 13-hour policy even as it has faced mounting legal challenges—intervenes to help absorb any financial impact.
“The hope and expectation is that the state will step up for their level of responsibility,” said Carlyn Cowen, the chief policy and public affairs officer at the nonprofit Chinese-American Planning Council, which operates a home care agency that’s involved in two pending class-action lawsuits related to the 13-hour rule.
“Upon final ruling by the Court, the State will evaluate the impact of the decision and work to minimize where possible disruptions to the delivery of personal care services,” the state Health Department said.
Governor Cuomo has declined to comment on this issue, and his office did not respond to a request for this story, but his administration has so far done everything in its power to keep the 13-hour policy intact.
On Tuesday, February 12th, Gotay took a rare day off, piled into a van with other home care workers chatting in Spanish and Chinese, and braved snowy roads to demonstrate outside of the Court of Appeals in Albany. The workers hoisted signs equating the 13-hour policy to modern-day slavery and demanding an end to 24-hour shifts altogether. Then they filed into the courtroom to hear the opening arguments in the cases on the docket: Andryeyeva v. New York Health Care and Moreno v. Future Care Health Services.
The Court of Appeals hearing was focused, in part, on whether the state was properly interpreting its own minimum wage regulations by applying an exemption that was originally reserved for “live-in” domestic workers, to home health aides on 24-hour shifts who have their own residences.
Some of the judges scoffed when Sari Kolatch, an attorney for the home care agency New York Health Care, argued that if an aide is in a client’s home for 24 hours and sleeps during that time, then the aide effectively lives there during those 24 hours.
Judge Eugene Fahey raised the argument that if a worker is required to be at their place of employment and on call, they should get paid, regardless of whether they are eating or sleeping. “Do you know any firefighters?” he asked Kolatch. “Every firefighter I know has slept on the job. But when the bell goes off, they’re available for work. They’re required to be there. Aren’t these employees the same?”
Governor Cuomo at a rally in 2015 (Governor's Office)
Overall, the seven judges on the panel appeared to be split on whether they favored the home care workers or their employers.
The State Department of Labor has opted not to fully support either side. In an amicus brief weighing in on the cases of Andryeyeva and Moreno, the DOL defended its policy allowing home care workers to be paid for 13 hours of a 24-hour shift and said its intention has always been to apply it to both live-in and non-live-in workers. But it also noted that home care agencies may still be guilty of denying workers the compensation they’re due under the law when they don’t get adequate sleep and meal breaks, and that home care workers should still be allowed to seek that compensation through class-action lawsuits.
Home care worker testimonies at a Department of Labor hearing over the summer, along with the complaints made in the lawsuits filed so far, suggest that home care agencies routinely fail to track the exact hours aides work and compensate them when they don’t get the required sleep and meal time. The state attorney general’s office says it now has three investigations open into home care agencies for potential violations of the 13-hour rule.
But employers argue that the amount of money they receive from Medicaid to pay for 24-hour care is based on the assumption that home health aides only have to be compensated for 13 hours of each shift. As it stands, Medicaid pays a fixed monthly rate for each member on a long-term care plan to cover the cost of the services they will need.
The state Health Department did not respond to a request for comment on what the mechanism is for reimbursing home care companies when a worker on a 24-hour shift has to be compensated for more than 13 hours.
“If the Department of Labor looks at the practices of many agencies, I have a strong suspicion they will find that the rule the industry is claiming they’ve been following all these years is, in fact, a rule they’ve been violating, and that even under that rule, workers will quite frequently be entitled to 24 hours of pay,” said Richard Blum, an attorney in the Employment Law Unit of the Legal Aid Society, who has represented home care workers and patients. “So, I don’t think that a Department of Labor regulation or a ruling from the Court of Appeals solves the problem that there has not been enough money in the system and that we need more money in the system to support this service.”
The Home Care Association of New York State, which represents employers, has so far pushed the state to uphold the 13-hour rule in order to shield home care agencies from liability.
First Chinese, the nonprofit agency that employs Gotay, declined to comment for this story. But at the Labor Department hearing over the summer, Jocelyn Lee, First Chinese’s executive director, demanded the state’s “fierce intervention” to prevent home care agencies from facing liability for unpaid wages under the 13-hour rule.
“Homecare employers are going to have no choice but to file for bankruptcy and the loss of homecare services for all of our homebound consumers will result in homecare consumers being institutionalized in nursing homes which will increase the amount of Medicaid and Medicare spending for the care of the clients,” Lee said in her testimony, noting that her agency alone serves more than 1,000 people across the five boroughs.
“If the court upholds the 13-hour standard, I think there’s going to be relief [for home care employers], but I wouldn’t necessarily consider it a triumph if we still have a system that doesn’t pay competitive wages and support the workforce in the way it needs to be supported,” said Roger Noyes, the state Home Care Association’s director of communications.
In addition to being most Americans’ preferred way to age, home care has long been considered a cheaper alternative to a nursing home. If the 13-hour rule is eliminated, it could push the cost of 24 hours of home care above the average cost of a day in a nursing home in New York City, potentially leading the state to further restrict who qualifies for the highest levels of home care under Medicaid and leading families to make tough decisions about how to care for their loved ones.
A ruling in workers’ favor could also force the state to figure out whether it’s possible to meet the rising demand for home care without relying on free labor.
“What it means is we’re not going to try to balance the home care budget on the backs of the most vulnerable employees,” said Jason Rozger, an attorney representing the workers in Andryeyeva v. New York Health Care, one of the cases before the Court of Appeals.
Even if the Court rules that the 13-hour policy is a violation of existing state regulations, however, the Department of Labor might still try to keep it in place by passing an update to the minimum wage regulations that would codify the policy into law. The Labor Department passed such an update multiple times on a temporary, “emergency” basis following lower court decisions in workers’ favor, until it was challenged in court and a judge ruled in October that there was no emergency. The Labor Department has also introduced a permanent version of that rule through the standard regulatory process. Although the public comment period ended in July, the Department has yet to decide whether to approve the rule and did not respond to a request for comment on its status.
Lai Yee Chan, a home health aide named in a lawsuit against the Chinese-American Planning Council Home Attendant Program, who made the trip to Albany between shifts last week, says she is optimistic that the workers will ultimately be victorious. She said she was encouraged that one of the judges made the comparison to firefighters.
“Firefighters are on call 24 hours and they get paid,” Chan said in Cantonese through a translator. “Are we home attendants special because we’re women? We are also on call. Why shouldn’t we get all our pay?”