Join us on Wednesday July 11 at 10:00 am to speak up for the rights of patients and home care workers. The New York State (NYS) Department of Labor (DOL) is holding a public hearing to make permanent the Emergency Regulations it issued last October concerning 24-hour home care attendants. The hearing will be held at 11 a.m. on July 11, 2018 at 55 Hanson Place, Brooklyn, NY 11217. The regulations undermined the previous wage laws established after 3 NYS court decisions ruled that home attendants must be paid for all 24-hours of a 24-hour shift. The NYSDOL emergency regulation allow employers to evade these court rulings, forcing home attendants to prove each day that they did not sleep at least five hours without interruption, thus sanctioning the industry-wide practice of paying home attendants for only 13 hours in a 24-hour shift.
Home attendants assigned to 24-hour shifts are caring for patients who have been approved for around-the -clock care because of their medical condition. Many are bed ridden, fall risks or have dementia. Home attendants are not allowed to leave the patients’ home during a 24-hour shift. Some shifts are five or six days a week. Home attendants say the regulation is establishing the conditions for modern day slavery-forcing thousands of mostly immigrant women and women of color to toil all night without pay in patients’ homes.
Furthermore, NYSDOL’s emergency regulation hurts patients. After the regulations were issued, to avoid paying for the night-time hours, some home care agencies began instructing home attendants to ignore patient’s needs after 9 pm even if the patient calls for them. How can home attendants ignore their patients’ needs? When workers refuse to ignore their patients, they are fired. The NYSDOL is setting up conditions to make workers willfully ignore patient needs – as if to say that patients’ health conditions can be turned off like a light switch.
For the health and well-being of patients and home attendants, we call on the NYSDOL to:
 Tokhtaman v. Human Care, LLC, 149 AD3d 476 [1st Dept 2017]; Andryeyeva v. New York Health Care, Inc., 153 AD3d 1216 [App Div 2017]; Moreno v. Future Care Health Services, Inc., 153 AD3d 1254 [2d Dept 2017].
5/9/2018 Press Release: Home Care and Other Workers Sue NYS Department of Labor for Bringing Modern-day Slavery Back to NY State
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.
Watch the NY1 Noticias coverage of our May 9 Protest at the NYS Department of Labor here.
English translation below:
By Spectrum Noticias NY1 | May 9, 2018 @7:32 PM
A group of home care workers sue the State Department of Labor for a regulation they consider unfair.
Employees are against an emergency resolution by the agency, for which they are paid only 13 hours of work, when in fact, according to them they work 24 hours.
The measure of the labor department, according to the demonstrators, represents an infraction of the labor laws of the State, forcing the workers to stay 24-hour shifts, without remuneration for the hours worked during the night.
For some, regulation affects both employees and patients.
“Nowadays what I have found is that I can not do anything practically, because I have the whole nervous system damaged, the dream, everything,” said one worker.
“When I worked 24 hours, it was like I was in a jail, it’s depressing, they gave me very difficult cases,” said a former worker.
“We only want to work 12 hours, which are 12 and 12, so that we can rest”, added another worker.
According to the protesters, city agencies are instructing workers not to respond to the needs of patients at night and call 911 if there is an emergency.