On Wednesday May 9th, home attendants, other workers, women’s groups and patient advocates, held a press conference at the NYS Department of Labor (DOL) at 75 Varick St. to announce a lawsuit against the DOL challenging its emergency regulation that legalizes a 24-hour work day while only paying for 13 hours.
Earlier this year, the state Department of Labor issued new emergency regulations that legalize a 24-hour workday for home attendants, of which 12 or 13 hours are unpaid. The regulations were issued after three New York State court decisions unequivocally affirmed that home attendants working 24-hour shifts must be paid for every hour they work. The state DOL issued the regulation in opposition to the court’s rulings and is encouraging homecare agencies to go against the judge’s decisions.
Home attendants and two workers centers, National Mobilization Against SweatShops and Chinese Staff & Workers Association, challenged this regulation in a lawsuit filed on May 4th in NYS Supreme Court. The DOL regulation violates the state’s own labor laws, specifically the minimum wage law that says on-call hours must be paid. Furthermore, the regulation may violate the 13th amendment of the U.S. Constitution by forcing workers to stay in patients’ homes without overnight pay.
Negative impact of emergency regulation
Workers say the DOL’s emergency regulation has hurt the workers and their patients. For example, workers at Chinese Planning Council (CPC) said shortly after the regulation was issued, they attended trainings where workers were instructed to ignore the patients’ needs after 9 o’clock.
Xiao Hui Yu and Lai Yee Chen from CPC said, “they told us you don’t need to get up no matter what the patient needs after 9 o’clock. If the patient falls down, all you need to do is call 911.” Chen went on to say, “I could not ignore my patient’s cries for help or let them risk falling down in the middle of the night. But when I reported my work to the agency so I could be paid for the hours I worked, I was fired. I was fired for refusing to ignore my patient’s needs. How could this be the way the DOL wants us to care for our elderly?”
The DOL wants to treat the home care workers as the same as live-in domestic workers but that is not the case. Home care workers have their own residence and unlike domestic workers, they are caring for patients who have been mandated 24 hours of care. The workers cannot leave the patient’s home even in the case of an emergency. They say agencies and the workers themselves can be held responsible if harm comes to the patients even during the night hours they are supposed to not attend to their needs.
Workers said this is in violation of their rights under the 13th amendment that outlaws slavery and involuntary servitude. “How can NYS say workers cannot go home but will not be paid for their work? The regulation sets up a system of slavery under which thousands of women will be forced to work”, said Yanin Pena from the Ain’t I a Woman Campaign.
“To be a home attendant you are told by the agencies you must work 24 hours or you won’t get the job. In all my years working as a home attendant I’ve made huge sacrifices. I neglected my family and my home. I missed birthdays, baptisms, and family dinners. My health is not even 50% of what it used to be. My health is really bad now”, said Sileni Martinez, a home care worker.
Workers and supporters said a better solution is to split 24 hours of care into two 12-hour shifts. This would result in better care for the patients as well as preserve the health of home attendants who are providing the care. They sent Governor Cuomo an open letter, urging him to intervene to rescind the emergency order, stop efforts to legalize a 24-hour workdays and implement split shifts to provide care for patients who require 24 hour care.