New York home health aides who have been fighting to get paid for every hour they spend on the job had their hopes dashed Tuesday when the highest court in the state ruled that it’s legal for them to get paid for 13 hours of a 24-hour shift while caring for elderly and disabled people in their homes.
The Court of Appeals ruling upheld a controversial minimum wage exemption the state Department of Labor has carved out for round-the-clock home care workers, known as the “13-hour rule.” It’s predicated on the idea that aides typically get eight hours of sleep (at least five of which is uninterrupted) and three hours for meals during a 24-hour shift. But workers say these breaks aren’t always possible given their duties.
“I am very angry with this decision,” Lai Yee Chan, a home care worker involved in a class-action lawsuit against her employer, the Chinese-American Planning Council Home Attendant Program, said in Cantonese through a translator. “So are other home care workers who work 24-hour shifts. The court should not listen to the Department of Labor. We need help from the state legislature to make the 24-hour workday illegal."
Tuesday’s Court of Appeals ruling reversed lower-court decisions in two class-action lawsuits from 2017 that said the 13-hour rule was illegal. Those rulings could have set a legal precedent that entitled thousands of workers to back-pay and set the stage for them to receive a full 24 hours of pay moving forward, or for 24-hour shifts to be abolished altogether.
State Assemblyman Harvey Epstein told Gothamist that he and other legislators who have been following the issue have been waiting to see whether the matter would be resolved in court. Epstein now says he plans to work with advocates to develop legislation that will address the issue, either by banning the 24-hour work day or requiring home care workers to be paid for every hour on the job.
“I think we’ll need to look towards other remedies to help these low-income New Yorkers who are mostly women of color who have now been relegated to a position where they are forced to work and not get paid,” Epstein said.
Having settled the question of whether the 13-hour rule is valid, the Court of Appeals decision still leaves the door open to class-action lawsuits alleging violations of the policy, which workers say are widespread. It may have therefore done little to dissolve the liability for unpaid wages that some have warned could have devastating effects on the industry that elderly and disabled New Yorkers rely on to remain in their homes.
“While the Court of Appeals decision brings clarity on how state policy is interpreted, the risks nevertheless remain, just as they do under any regulation, especially one as complex as this,” said Roger Noyes, a spokesman for the Home Care Association of New York State.
Round-the-clock home care workers who testified at a Department of Labor hearing in July said that they routinely have to work through designated sleep and meal breaks and that coordinators at their agencies are not responsive when they report that they don’t get the requisite sleep and meal time under the law.
The two cases that were under consideration by the Court of Appeals—Andryeyeva v. New York Health Care and Moreno v. Future Care Health Services—are being remanded back to a lower court to determine whether workers still have valid claims and are justified in suing as a class. Michael Sweeney, an attorney representing the workers in Moreno, said he is confident his clients will still be able to pursue damages, in part because the home care agency didn’t keep adequate records of whether workers were getting their required sleep and meal breaks.
“If they want to take 11 hours out of someone’s paycheck, they’re required to keep records,” said Sweeney. “Each of these workers has to use a remote clock-in, clock-out system. [The home care agency] could have easily said, ‘Call and punch out when you go on a sleep break and call when you go back to work,’ but they didn’t.”
The state Medicaid program, which insures low-income and disabled New Yorkers, pays for the bulk of 24-hour home care. Eliminating the 13-hour rule would significantly increase costs at a time when Governor Andrew Cuomo is already alarming health care providers by floating measures to keep Medicaid spending down. Increasing the cost of home care could lead to tough decisions about who qualifies for the highest levels of assistance.
Susan Dooha, executive director of the New York chapter of the Center for Independence of the Disabled, acknowledges all of that, but said she still sees a need for reform.
“We believe in just treatment for home care workers, who are our partners in maintaining our independence,” Dooha said, referring to disabled people seeking to avoid being placed in a nursing home. She said the state should shape the budget based on people’s needs, acknowledging that the population is aging and people with disabilities are living longer, rather than trying to keep spending under the cap Cuomo instituted to keep ballooning Medicaid costs in check.
Dooha said the best thing would be to break 24-hour shifts up into two shifts of 12 hours each.
“There are certain people with disabilities who have told me that having someone available for 24 hours straight is more beneficial to them,” Dooha said. “But, by and large, a worker is able to do their job better if they have sleep and are able to be more engaged and are not exhausted all the time. Therefore, it’s also a safer situation with better communication for people with disabilities.”
JoAnn Lum, an organizer with the labor group the National Mobilization Against Sweat Shops, says the Court of Appeals decision was disheartening but the fight is far from over. “It’s a blow to workers’ rights and to patient care,” she said, “but we will continue to organize even more broadly than ever.”