When they work on-call shifts, New York’s home-care workers know that means the workday basically never ends. Workers say their real workday is simply nonstop, round- the-clock stress, and the state appeals court has agreed in several cases. Under the state’s arcane regulations, however, the health-care agencies that employ them are allowed to pay them for only half of a 24-hour shift and discount the remaining on-duty hours as three hours of meals and eight hours of “sleep.” But following key decisions striking down the rule, Governor Cuomo’s Department of Labor issued “emergency regulations” to restore the unjust status quo. And so many of the state’s hardest-working, lowest-paid health-care workers returned to their on-call shifts to toil around the clock at half the pay.
Following last year’s legal triumphs, “home attendants really rightfully celebrated that as a victory that came at least in part as a result of their organizing,” said Sophie de Benedetto with the Ain’t I a Woman labor-advocacy campaign. But after hundreds of workers petitioned to overturn the rule and testified about the “brutal conditions,” the Labor Department still upheld the more profitable industry standard (which is heavily subsidized by state and federal senior-care funds) of nonstop shifts for a 50 percent discount. Advocates are now pressing the State Labor Board of Appeals, which reviews Labor Department decisions, to abolish the rule directly.
Despite Cuomo’s claims of championing the rights of women workers, de Benedetto says that the state’s mostly female home-care labor force “really see this as Cuomo saying that forced 24-hour shifts are okay…. We’re going to steal…12 hours of your life, and you’re not going to get paid for it…. We really see these regulations as inhuman, brutal, and illegal.”
The appeals-court cases hinged on an obscure regulatory carve out for workers who technically do not live on site but remain on call 24-7, which exempts them from standard-wage and break-time provisions for live-in care workers such as residential nannies.
Before a recent Labor Board of Appeals hearing, 68-year-old home-care worker Ignacia Reyes recounted the never-ending days that filled her week for about a decade: three 24-hour shifts at a senior center in Brooklyn, followed by four all-day shifts for another social-service agency.
To support her family in the Dominican Republic, she worked about 72 hours weekly for $11 an hour, she said, but received regular wages for just 36 hours. Yet for years she never left her client’s side: “Even though I’m resting,” she testified, “I am still aware of what is happening with my patient. I always have to make sure my patient isn’t getting up out of the bed because she could leave the apartment and walk into the street, turn on the stove, or do other things that would be dangerous.” Reyes, who even left the door open when using the bathroom, was reminded by her employer that “if something happens to my patient, I could go to prison.”
Eventually, Reyes became a casualty of the job herself. Exhausted by her punishing schedule, she refused to take on a new client, and was then forced to sign papers she didn’t understand. It turned out to be her own resignation contract.
While the price of asserting their rights at work for some is getting fired, others pay with their health. Many workers Ain’t I a Woman organizes face major medical expenses (many lack employer-based insurance), constant mental stress, and even surgery due to chronic muscle strains .
“If you are caring for a patient who requires 24-hour care…they don’t require 24-minus the five hours you’re sleeping,” De Benedetto said. Without any real rest, “not only is that emotionally and physically damaging and exhausting, but those are hours of my time that are being stolen because they’re not being paid.”
The latest appeals-court ruling in December described the 13-hour cap as “neither rational nor reasonable” in practice, because if workers had to be available for 24 hours, paying them only if they “were ultimately called upon to perform services is contrary to the plain meaning of ‘available.’” In other words, you can’t punch out for a nap when you’re constantly monitoring a frail client’s precarious blood pressure or guarding against an overnight heart attack.
The state labor dispute reflects a nationwide debate over ensuring sustainable long-term care for a rapidly aging population. New York’s more than 300,000-strong home-care and personal-care workforces are set to balloon about 45 and 30 percent, respectively, between 2014 and 2024. About half of these workers, mostly women of color and immigrants, live at or near the poverty level, earning only around $11 per hour, and many depend on public benefits for health care and food assistance. Many will benefit soon from an incremental rise in the state minimum wage to $15 an hour—a reform driven in large part by health-care-worker unions.
In 2015, the federal Labor Department under Obama issued a long-awaited regulation to extend federal minimum-wage and overtime protections to about 2 million home-care workers nationwide, closing a long-standing loophole. But in New York, the recent guarantee of overtime protection has been undercut by the state Labor Department, along with conflicting rulings from federal courts that contradict the state’s ruling against the 24-hour shift rule.
Workers are now appealing to the Cuomo administration to simply do the right thing and pay home-care workers for all the hours they work. Meanwhile, labor groups are pushing for better industry standards overall, including fairer Medicaid reimbursement rates so workers can earn family-supporting wages. To improve turnover and recruitment rates, advocates call for more state investment in programs for raising training standards and job benefits.
The Aint I a Woman campaign has called for banning 24-hour shifts altogether and replacing them with “split shifts” of 12 hours, spread out between alternating workers, who can then choose for themselves whether to work overtime. At the Appeals Board hearing last week, home-care worker Justa Barrios said her coworkers don’t want more hours so much as fair wages and schedules: “Twenty-four hours isn’t good for any of us. It hurts our health and we never have time with our families.”
Twenty-four hour care is often medically necessary, but workers’ rights are no less imperative. Making the home a fair workplace means good care and fair treatment go hand in hand. As more of us seek to age peacefully at home, the system has to upgrade the quality of the work that determines the quality of our later lives.