February 16, 2016
by Caroline Lewis
A wage lawsuit brought by three home health aides against the Chinese-American Planning Council’s home attendant program in March 2015 must go to arbitration, a judge ruled this month.
The workers are represented by 1199 SEIU, and the health care union has not publicly supported the lawsuit. It now is in the position of deciding whether to represent them in arbitration. If the union decides not to, the workers could choose to act on their own but could not seek class-action status.
The home health aides sued CPC, a Manhattan social-services agency that operates a large home attendant program in the five boroughs, alleging it failed to pay overtime and minimum wage. At the heart of the case is how much pay a home health aide is entitled to earn for a 24-hour shift. According to the workers and their attorneys, they should be compensated for all 24 hours.
The New York State Minimum Wage Act, which has served as state policy on the issue, permits home care agencies to pay attendants for 13 hours of a 24-hour shift. That’s assuming an employee gets three hours for meals and eight hours of sleep, including at least five that are uninterrupted.
In December, Helen Schaub, the New York state director of policy and legislation for 1199 SEIU, defended the labor practices at CPC.
“This nonprofit agency was following both individual practice and the Department of Labor’s interpretation of state labor law,” she said. “There’s no agency I’ve been aware of that has ever paid a live-in worker for 24 hours.”
But the workers, who have their own residences, argue that aides should not be subject to the same rules as live-in help. An initial motion by CPC to dismiss the case was denied, based on the prevailing interpretation of the law by the state DOL.
The attendants at CPC decided to file the suit after consulting with the Chinese Staff and Workers’ Association, based in Chinatown.
Wing Lam, executive director of the workers’ center, said 1199 SEIU has been ignoring the workers’ grievances, noting that their wages have not increased in eight years, a fact confirmed by the union.
“They need jobs, but it shouldn’t be that kind of job,” said Lam, who is organizing workers at other home care agencies. “We help them understand what’s going on and then they want to fight.”
The health care union said it has won additional benefits for the workers at CPC over the years, and continues to fight for better wages.
“We are proud that we have been able to preserve comprehensive, affordable health care and other benefits during the past eight years, but home care workers do need a raise, and that’s why our members are so involved in the Fight for $15 to win additional Medicaid funding for higher wages in the home care industry,” 1199 SEIU said in a statement.
It would not comment further on the arbitration because it is still reviewing the judge’s decision. That motion to compel arbitration was based in part on a provision of a collective-bargaining agreement between 1199 SEIU and CPC that calls for disputes between them to be settled by arbitration.