A group of home health care aides announced a lawsuit against the state’s Department of Labor, hoping to spur the agency to reopen an investigation into their employers — saying they are often forced to work 24-hour shifts, while being paid for only 13 hours.
Lawyers representing the plaintiffs say the employees are subject to the “13-hour rule” that allows healthcare agencies to pay live-in aides for 13 hours, while not paying for eight hours of sleep and three hours for breaks.
But their 11-hours of unpaid time are often spent working, they allege, as enforcement of the rule is weak — resulting in the workers making less than minimum wage for their work, often caring for the elderly and disabled.
“The NYSDOL’s practice of not investigating sleep or meal breaks, it has become the industry standard to pay only for 13 hours regardless of whether aides receive proper sleep or meal breaks,” the lawsuit alleges.
The investigation into the lost wages, which went on for years, was closed by the NYSDOL in April after the union representing the workers won a separate private arbitration case against various home health care agencies.
That February 2022 arbitration settlement resulted in 42 different companies paying $30 million into a “special wage fund” to cover unpaid work by employees represented by the union 1199SEIU.
As a result, the NYSDOL said it would stop investigating any claims made by individual health aides, arguing that the matter was no longer under their purview — as the arbitration agreement, which led to the $30 million, served as an adequate resolution to the issues they were complaining about.
Their decision meant that disagreements over wages would only be resolved through private arbitration between the workers’ unions and the companies, and the NYSDOL would not get involved in claims made by individuals.
“We understand other means are available for a resolution of your claim,” the agency wrote in response to approximately 120 complainants.
Yet the employees say the $30 million was not nearly enough, and the NYSDOL should continue the investigation, rather than deny individual workers of their chance to appeal to the government to resolve wage theft claims simply because they also have access to private arbitration, according to lawyers with the National Center for Law and Economic Justice.
“The amount secured by their union in a recent arbitration agreement, less than 1% of what they are owed, is woefully inadequate given that these workers were subjected to unlawful working conditions that have in some cases led to permanent disability,” said Carmela Huang.
The employees’ lawsuit, though, seeks to annul the NYSDOL rule that bars them from investigating claims filed by individual home care aides subject to arbitration agreements, which superseded the department’s authority in wage theft cases.
If successful, the lawsuit would prompt the NYSDOL to renew their investigation — which had already found “overwhelmingly corroborative” evidence, according to the plaintiffs, that the employees were, in fact, denied the wages they were entitled to.
‘“Home care workers experienced an unconscionable level of wage theft by being forced to work full 24-hour shifts for only 13 hours of pay,” said Richard Blum, a staff attorney with the Legal Aid Society. “NYSDOL should be securing justice for these vulnerable workers — not throwing them under the bus with an arbitrary and illegitimate rule that leaves them shortchanged.”
The NYSDOL did not respond to a request for comment.