Crain’s Health Pulse: Fine Print Keeps Home Health Care Lawsuits Out of Court

Crain’s Health Pulse, Wednesday, July 20, 2016

A growing number of home health care workers in New York are filing lawsuits charging wage theft, say industry insiders. The trend, they say, is driving home care agencies to write mandatory arbitration clauses into their contracts that require workers to settle any complaints against the employer in private.

Home health industry advocates attribute the recent uptick in lawsuits, in part, to the fact that home care agencies are still catching up with the spate of complex state and federal wage policies that have gone into effect over the past few years. At the same time, long-standing state guidelines on what workers are owed for 24-hour shifts have come under fresh scrutiny.

Mandatory arbitration clauses help agencies protect themselves from costly and time-consuming litigation, said Stephen Zweig, an attorney at Ford Harrison, who has represented dozens of home-care agencies in New York.

“The more sophisticated law firms will recommend the clauses to their clients,” said Emina Poricanin, a senior associate at Hodgson Russ, who represents home-care agencies throughout the state and offers consulting services to the New York State Association of Healthcare Providers, a home-care industry group.

Zweig and Poricanin say requiring disputes to be settled outside of the courtroom by a private arbitrator — a practice that spans many industries and was the subject of a New York Timesinvestigation last year — does not disenfranchise workers.

But at least one group of home health aides says mandatory arbitration has denied them their right to address systemic abuses.

Last March, current and former employees of the Chinese-American Planning Council Home Attendant Program, a home-care agency based in Lower Manhattan, filed a class-action suit in New York Supreme Court, seeking a full 24 hours of pay and overtime compensation for the 24-hour shifts they had worked.

This lawsuit, which sought back-pay for what lawyers estimated to be thousands of current and former employees of the organization, challenged the current guidelines set out by the state, which require agencies to pay workers for only 13 hours of a 24-hour shift, as long as they get a certain amount of time for sleep and meals.

In February, a judge ruled that the case couldn’t proceed in court because of a mandatory arbitration clause in the employees’ contract. The provision was included in a collective bargaining agreement between the Chinese-American Planning Council and 1199 SEIU, which represents the workers. Even though the agreement was signed after the case was filed, the judge said it still applied.

At the end of June, employees of the nonprofit home care agency delivered a petition to the union with 70 signatures, demanding that the union let workers seek justice in court. The petition […] also demands that the union “make a serious effort to investigate whether there was any wrongdoing, illegal activity or corruption conducted by the union staff in dealing with workers’ pursuit of their back wages.”

“The arbitration provision accords the members full statutory protection of their rights with the added benefit of an expeditious settlement of their claims through and arbitration procedure, rather than multi-year court litigation,” a spokesman for 1199 SEIU said in a statement.

If 1199 SEIU chooses not to represent the workers in arbitration, they could seek judgement on their claims individually, but the workers would be responsible for paying an estimated $8,750 per day for the services of an arbitrator and a mediator, their lawyers estimated. The workers’ lawyers, who were retained on a contingency basis, argued that amount would be prohibitively expensive.

Cost aside, the workers who were the plaintiffs in the case are not interested in settling the dispute out of court and abandoning their pursuit of class-action status, said Jei Fong, who has been helping to organize them through the Chinese Staff and Workers Association.

“The great thing about the court system is it’s all open and transparent,” said Fong. “People can hear about it and even see the arguments being presented. Arbitration puts a veil on everything.”

It also puts workers at a disadvantage, according to their employer Ling Ma, director of the Home Attendant Program at the Chinese-American Planning Council. “Arbitration, we believe, is more favorable to the employer side,” she told Crain’s, explaining why she prefers it to the court system


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