For decades, home care agencies have systematically underpaid these home care workers by compensating them for no more than 12 to 13 hours of a 24-hour shift during which they must remain in the patient’s homes and on-call for all 24-hours. These women spend their days and nights tending to their patients’ needs with fundamental tasks such as, dressing, bathing, changing diapers, toileting and feeding. Importantly, this work does not end when its time for bed. Because their patients need constant care, home care workers must be on call to provide assistance at all times. As a result, the home care workers work all through the day and night – without any compensation whatsoever for approximately 11 to 12 of hours of the 24 hours they are required to stay in the patients’ homes.
In 2017, the First and Second Departments of the New York State Appellate Division unanimously ruled that these workers, like all other employees, must be paid the minimum wage “for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer.”[2] Yet, despite the fact that 54% of their own employees are receiving some form of public assistance, and no fewer than 37% qualify for, and rely on, Medicaid,[3] home care agencies in New York continue to fight these decisions in the courts.
Sadly, instead of New York State following its long-standing commitment to expand protections for vulnerable workers, the State is supporting home care agencies in attempting to strip home care workers of their right to be paid for all hours worked. Likewise, in October 2017, the New York Department of Labor, whose stated mission is to “protect workers,”[4] issued an emergency regulation designed to specifically exclude home care workers from receiving wages for all hours worked. Though the regulation remains temporary, it now permits home care agencies to continue excluding payment of eight hours for sleep and three hours for meal times during each 24-hour shift worked, despite that home care workers are never provided these breaks.
On March 7, 2018, the Second Department granted the home care agencies’ motions to appeal the Andryeyeva v. New York Health Care, Inc., and Moreno v. Future Care Health Servs., Inc. decisions to the New York Court of Appeals. On International Women’s Day, home care workers all over New York State focused on the upcoming fight for their fair wages, where they hope the Court of Appeals will ultimately determine that they deserve the same protections under the labor law that is afforded to all other workers in New York State.
[1] Podcast: Bringing 2 Million Domestic Workers Out of the Shadows, The Chronicle of Philanthrophy (February 2, 2018) https://www.philanthropy.com/article/Podcast-Bringing-2-Million/242413?cid=cpstw.[2] 12 N.Y.C.R.R. §142-2.1(b); Tokhtaman v. Human Care, LLC, 149 A.D.3d 476, 52 N.Y.S.3d 89 (1st Dept. 2017); Andryeyeva v. New York Health Care, Inc., 994 N.Y.S.2d 278, 285 (N.Y. Sup. Ct. 2014), aff’d, No. 2014-09087, 2017 NY Slip Op 06421, 2017 N.Y. App. Div. LEXIS 6408 (2d Dept. 2017); Moreno v. Future Care Health Servs., Inc., 2017 NY Slip Op 06439, 2017 N.Y. App. Div. LEXIS 6462 (2d Dept. Sept. 13, 2017)
[3] PHI. “Workforce Data Center.” https://phinational.org/policy-research/workforce-data-center/ (last modified November 10, 2017).
[4] https://www.labor.ny.gov/about/
