Home attendants fight back and win! DOL’s emergency order that forced home attendants to work 24-hour work day is declared null

A New York court decision null and void the NYS Department of Labor’s (DOL) emergency regulation that permitted home care agencies to pay home attendants for only 13 of their 24-hour shift, and that effectively legalized a 24-hour workday for home attendants. Finding there to be no emergency, Judge Eileen Rakower of the New York State Supreme Court ruled “the record is devoid of any facts” upon which to justify that the emergency regulation was needed to “prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home.”

Home attendants, patient families, and other supporters celebrated this decision at the NMASS Lower East Side Workers Center and urged Governor Cuomo to direct the DOL to stop attempting to legalize a 24 workday, particularly in which 11 of those hours are not paid. These 24-hour shifts should be split into two 12-hour shifts done by two workers. Home attendants who work 24 hour shifts are assigned to patients with the highest needs and require around the clock care. These workers, 93% of whom are women, mostly immigrants and women of color, cannot leave the patients’ home, with some working shifts for 5 or 6 days. This inhumane practice is detrimental to the patients who end up not receiving adequate care and home attendants’ own health and mental wellbeing.  

Justa Barrios, who has worked 24-hour shifts for 14 years, said, “I feel happy! We face so much abuse working these 24-hour shifts–and they only pay us for half! We do this work because patients need this care around the clock. But working all this 24-hour shifts has hurt my health, my family. No more 24-hour shifts. We want 12 hours and 12 hours between two workers.”

Mika Nagasaki, organizer with Chinese Staff & Workers Association said, “We want to inform the thousands of other home care workers who are affected, to come forward to assert your rights and demand that these agencies and insurance companies immediately stop their illegal practices and pay workers for all the hours they work. They should also right their wrongs by compensating their workers for all lost wages now.”

 Lai Yee Chan, “We are happy with the court decision, we hope Governor Cuomo learns a lesson, and stops forcing us to work 24-hour workdays. 24-hour workdays not only destroys our health, our family and our life, it also denies our patients proper care. Is this American? It is shameful.”

Travis England, lawyer with the National Center for Law and Economic Justice that represented the home attendants and workers centers in the lawsuit, said, “We are pleased with Justice Rakower’s ruling, which recognized that the Department of Labor overstepped its bounds in issuing these Emergency Regulations. The Department acted behind closed doors and without any input from the public, including the home care workers directly impacted by the regulations.”

Background:

After home attendants across New York City had organized for years against 24-hour shifts and to be paid for all hours worked, they won in court last year. The New York State Supreme Court Appellate Division issued decisions consistently making the law clear: it is illegal for employers to pay only 12 hours for 24-hour shifts. Weeks after these victories, the DOL attempted to thwart these judicial decisions through the emergency rulemaking process. Since October 2017, the DOL issued 5 identical emergency rules that non-residential home care aides were not entitled to be paid minimum wage for meal periods and sleep times, effectively revoking the court’s decisions.

Home attendants, along with two workers centers, Chinese Staff & Workers Association and National Mobilization Against SweatShops, sued Labor Commissioner Roberta Reardon and the NYS Department of Labor to stop these emergency rulings, and also prohibit a 24-hour workday.

Read the decision: Article 78 DECISION___ORDER_ON_39