NY home care workers protest ‘rampant’ wage theft after labor dept. drops investigation

This article was originally published in Gothamist. Read it here.

Home health aides will rally outside the state Department of Labor’s headquarters in Lower Manhattan at 11 a.m. on Wednesday to protest the agency’s decision to stop investigating their complaints of wage theft. It’s an issue that New York home care workers said is rampant, particularly when they work 24-hour shifts, and they have been sounding the alarm about the problem for years.

The demonstration comes after five home care workers filed a petition in state Supreme Court last week to get the labor department to reopen its investigations into their wage theft complaints, which they recently learned had been closed. The group of workers argue their complaints are representative of labor abuses throughout the industry and are seeking class-action status.

All of the complaints are related to home health aides allegedly being underpaid while working around the clock in their elderly or disabled clients’ homes. State policy allows these workers to be paid for just 13 hours of a 24-hour shift, as long as they also receive sufficient time for sleep and meals. In recent years, home care workers have tried and failed to successfully challenge that rule in court.

Many said the home care staffing agencies they work for have also declined to properly compensate them during shifts when they can’t get the requisite sleep and meal time, and some have turned to the Department of Labor to enforce the law. Dozens of workers attested to their underpayment under the 13-hour system during a labor department hearing on the issue in 2018.

“As a government agency, the Department of Labor should enforce the law and give us justice,” said Gui Hua Song, a retired home attendant named in the lawsuit against the state, in an emailed statement to Gothamist.

According to the petition, Song routinely had to change one of her clients’ diapers and reposition her throughout the night while working multiple days in a row, but was never compensated for more than 13 hours of each 24-hour shift. In her comments to Gothamist, Song said labor department officials contacted her in 2019 to say her case was “clear and hopeful” but didn’t follow up.

Asked for comment on why the investigations were closed, labor department spokesperson Beau Duffy said the agency does not comment on pending litigation. Duffy also did not respond to a question about the total number of complaints that have been filed about wage theft for 24-hour shifts.

Carmela Huang, an attorney for the petitioners, said she doesn’t know exactly how many such complaints have been submitted to the labor department in recent years but estimated that it was around 200.

Gothamist filed a FOIL request in November 2021 for the contents of any complaints related to wage theft on 24-hour home care shifts and the labor department’s response to each one. About six months later, the agency released a list of 34 active investigations into such complaints, naming nearly as many home care agencies, but declined to provide any of the records associated with them.

Huang, who has represented 24-hour home care workers in the past, said she has been in touch with labor department officials in recent years to receive updates on their investigations, which appeared to be progressing until recently. The labor department decided to investigate a representative sample of the complaints to make the process more efficient, according to the petition.

In an email to Huang in December 2019, which was submitted to the court, James Rogers, the state’s former deputy commissioner for worker protection, mentioned a complaint from one of the home care workers now suing the state and said it was being used as “one of our key test cases” in the department’s audit of home care agency practices. Rogers, who now works for the state Office of Cannabis Management, said the documents were “overwhelmingly corroborative.”

Despite this progress, the state Department of Labor began closing its investigations into these complaints earlier this year, according to the court petition. In correspondence submitted to the court, officials said they could not pursue the investigations because the workers in question were covered by collective bargaining agreements between their union, 1199SEIU and their employers.

Many 24-hour home care workers have criticized 1199 over its handling of their complaints. Some were unable to proceed with court cases suing their employers over their handling of 24-hour shifts because 1199 put clauses in their contracts saying that wage theft complaints had to be handled through private arbitration.

The union ultimately consolidated complaints against 42 home care agencies into a single arbitration case and declared victory when it secured $30 million in unpaid wages for more than 100,000 current and former home care workers. But a worker coalition representing home health aides denounced the award as “meager crumbs,” saying it didn’t come close to compensating them for the unpaid hours they worked.

According to the workers’ petition, the labor department is effectively creating a new policy by declining to investigate complaints that were subject to private arbitration – but without going through the necessary protocols. That includes officially proposing a new rule and submitting it for public comment, Huang said.

The U.S. Department of Labor recently asserted that employers cannot use arbitration agreements to “shield unlawful practices.”