By Steve Wishnia

A state Supreme Court judge in Albany has annulled the state Department of Labor’s decision to cancel its investigations into wage theft from home health-care aides who worked 24-hour shifts but only got paid for 13 hours.

In Chen v. Reardon, Judge Gerald W. Connolly ruled that the department’s decision to close the investigations, on the grounds that it had limited resources and the workers had “other recourses” because they were covered by arbitration agreements under their union contracts, amounted to arbitrarily creating a rule without going through proper procedures.

The Department of Labor “did not determine whether any of the Petitioners actually failed to inform their employer of sleep interruptions before terminating its investigations into their complaints,” Judge Connolly wrote. “NYSDOL’s single decision to terminate all investigations involving an entire class of claimant was applied rigidly across-the-board to every member of the class, and it left NYSDOL with no flexibility or discretion to investigate any individual claim.”

The class-action suit was filed in August 2023 by five women who’d worked 24-hour shifts and filed forms stating that they had not gotten five hours of uninterrupted sleep during their shifts. Under a 2019 ruling by the state Court of Appeals, that meant they were entitled to be paid for the full shift. The legal-fiction justification for paying workers for only 13 hours is that they’re supposed to get 11 hours off for eating and sleeping.

“The Supreme Court’s ruling is really gratifying. The court finally made a fair judgment, that it’s illegal for the Department of Labor to close our case!” Guihua “Candy” Song, one of the five plaintiffs, told a rally of about 200 people Oct. 30 in front of the Chinese Staff and Workers’ Association offices in Chinatown, speaking in Chinese. “Today, on behalf of all home attendants, I firmly demand the DOL: Enforce the law immediately! Publish the results of your investigation! Pay back our blood and sweat money!”

“Even though I no longer do 24-hour workdays, I am not able to sleep at home, and I often jump up to look for my patient as soon as I fall asleep,” said Yun Fang Zhang, a Royal Care home attendant who did 24-hour shifts for 10 years. “The DOL calculated our back pay two years ago, but has not enforced the law. Is the DOL going to drag it out until we die?”

The Home Care Workers Against 24 coalition is demanding that the department “force employers to pay back the stolen wages. Many of the cases have dragged on for six or seven years,” spokesperson Kathy Lu told Work-Bites. “They know that these agencies violated the law.”

“The New York State Department of Labor does not comment on active litigation,” an agency spokesperson responded. It would not say whether it is considering an appeal.

The crowd then marched to the United Jewish Council’s offices in the Hillman co-ops off Grand Street, and then to the new offices of the Chinese-American Planning Council (CPC) on Suffolk Street.

Home Care Workers Against 24 singled those agencies out as the “worst two employers.” More than 100 workers have filed wage-theft claims against CPC, and the coalition estimates they are owed about $90 million, Lu says, while many other agencies have switched to split shifts.

The arbitration agreement reached in 2022 between 42 home-health-care agencies, including UJC and CPC, and 1199SEIU, the union representing most of the workers, provided $30 million in back pay.

UJC and CPC “were the only agencies to fight us when we challenged the Department of Labor in court,” Alvaro Ramirez, speaking in Spanish, told the crowd outside the UJC offices. He said he’d done 24-hour shifts for 15 years, four or five days a week, while working for its home-care program.

As he spoke, a plainclothes police officer grabbed the bullhorn out of his hand and confiscated it, saying the marchers did not have a permit for amplified sound.

CPC’s response

“We are in full support of home care workers in their call to end 24-hour shifts and to make two 12-hour split shifts universal,” the CPC responded in a statement. “Unfortunately, 24-hour shifts are mandated by state law and determined by insurance companies.” It said its home-care program “does not have the power to split 24-hour shifts on our own and has therefore been advocating for state reform for years.”

However, the state Department of Health regulations the statement linked to say that people should have one aide covering a 24-hour shift when their “need for assistance is sufficiently infrequent” that a live-in 24-hour aide “would be likely to obtain, on a regular basis, five hours daily of uninterrupted sleep.” It says aides should split shifts when the person “needs assistance with toileting, walking, transferring, turning or positioning, or feeding” so often that a 24-hour aide would be unlikely to obtain five hours of uninterrupted sleep.

There are over 11,000 24-hour cases in New York State, CPC says, and its program has only 39 24-hour cases and 38 12-hour split-shift cases. It says that 80 of its 4,500 home-care workers do 24-hour shifts, and that the city Human Resources Administration and insurance companies have repeatedly denied its requests for split shifts, and both “threaten to terminate our contracts” if it declines 24-hour cases.

The agencies providing home health care are generally paid by Medicaid, with managed-care private insurance companies as the intermediaries. The insurance companies work with the agencies to deny workers pay, says Lu.

“The problem is not that they don’t have money,” she adds.

“I worked 24-hour workdays for more than 11 years. My body was destroyed and I couldn’t work anymore,” former CPC home attendant Xiao Huan Yu said as the march reached the agency’s headquarters. “CPC, you cannot hide anymore. Pay back our stolen wages immediately!”

The offices, opened in April, are part of a two-building complex built as a partnership between CPC and the Gotham Organization developer. It includes a mix of “affordable housing” and luxury apartments. Rents on the latter range from $3,700 a month for a studio to $7,900 a month for a two-bedroom.

“Xian zài huán qián,” the crowd chanted. That translates as “Pay back now.”

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