Home care workers file federal complaint against New York over ‘discriminatory’ 24-hour shifts

Labor groups representing home health aides filed a federal discrimination complaint Tuesday against the New York State Departments of Health and Labor for their handling of 24-hour home care shifts.

The complaint, which represents an escalation in the yearslong battle over these controversial shifts, stated the agencies’ policies and practices subject home health aides to “unconscionable levels of wage theft and make them extremely vulnerable to occupational injuries that often lead to permanent disability.” It was filed with the U.S. Departments of Justice, Labor, and Health and Human Services.

New York policy allows these workers to be paid for just 13 hours of each shift, under the assumption that they are able to sleep and eat during the other hours they spend in their patients’ homes. However, many aides have long said this practice was impossible, given their patients’ round-the-clock needs — and that they ended up missing out on both sleep and adequate pay. Despite these concerns, the state Departments of Labor and Health took action in 2018 to reinforce the 13-hour policy.

The federal complaint alleges that the state’s policies disproportionately affect people of color and immigrants, in violation of Title VI of the Civil Rights Act of 1964 — which bans discrimination under any program or activity that receives federal funding. Much of the home care provided in New York is funded by Medicaid, a health program for people with low incomes that is paid for through a mix of state and federal dollars.

Home health aides in New York state — 81% of whom are people of color and 67% of whom are immigrants — have been fighting for years to change the rules around 24-hour shifts.

Getting federal agencies involved can provide “an external source of strong accountability that otherwise doesn't exist within the state,” said Carmela Huang, an attorney with the National Center for Law and Economic Justice, which filed the complaint on behalf of the labor groups.

Each federal agency decides whether it has jurisdiction over the issues raised in a Title VI complaint. If an agency accepts the complaint, it will then conduct an investigation and seek to resolve any violations that are found. The agency can take enforcement action if the violations are not resolved. Huang said enforcement could include the withdrawal of federal funding. But, she added, “obviously, that’s not what anybody wants.”

Huang filed the discrimination complaint on behalf of the Chinese Staff and Workers’ Association, the National Mobilization Against Sweatshops and the Flushing Workers’ Center, all of which are grassroots labor organizations based in New York City. The groups are part of the Ain’t I A Woman Campaign, which is ultimately seeking to abolish 24-hour home care shifts.

The Ain’t I A Woman campaign is planning a rally outside of the state Department of Labor’s office in Lower Manhattan on Wednesday.

Workers have already tried several other unsuccessful approaches to ending the 13-hour policy — including suing their employers in more than 100 class-action lawsuits. In 2019, two of these cases made it to the highest court in New York. Those judges ruled that the 13-hour policy was legal — but said it still had to be properly enforced, so that workers either got all the sleep and meal time they were entitled to or were compensated if they didn't.

Despite upholding the policy, the court’s majority opinion at the time stated that the workers’ allegations were “disturbing and paint a picture of rampant and unchecked yearslong exploitation.”

But following that ruling, New York regulators did not make an effort to adjust the policy or better enforce it, according to the new discrimination complaint. The filing alleges that, in order to avoid liability, some home care staffing agencies began telling employees not to respond to their patients at night, except in the case of an emergency. It also stated some workers have faced retaliation from their employers when they tried to properly report their hours due to the extra pay associated with fair compensation.

The state Department of Labor has been slow to respond to grievances workers on 24-hour shifts have filed about their employers, the complaint stated.

The state Department of Labor declined to comment. The Department of Health did not respond to a request for comment prior to publication.

One of the goals of the discrimination complaint is to get the state health department to change the way it assesses home care patients’ needs. Under the current protocols, patients who really need one caretaker during the day and another at night are too often assigned just one person who must provide round-the-clock care, Huang said. The complaint seeks to ensure that patients’ needs are covered by enough aides to allow the required amount of sleep and meal time under the law.

Similar discrimination complaints filed with the U.S. Department of Health and Human Services have resulted in health care entities agreeing to take some form of corrective action, according to the federal agency. For instance, after closing a hospital that primarily served Black people, the University of Pittsburgh Medical Center agreed to provide free transportation to other medical facilities and to conduct a series of free health screenings in the affected area throughout the year.

Meanwhile, home care workers with the Ain’t I A Woman campaign are still seeking to get 24-hour shifts banned altogether — and are putting pressure on New York City and state politicians to take action.

The campaign is still pushing legislation in the New York City Council to ban 24-hour home care shifts. At a recent City Council hearing, some stakeholders testified that although they supported the idea of ending 24-hour shifts, they said the decision should be left up to the state, rather than the city. But a similar bill has stalled in the state Legislature.

Ain’t I A Woman is planning a rally outside of the state Department of Labor’s office in Lower Manhattan on Wednesday. At the event, workers will call on Gov. Kathy Hochul and those challenging her in the upcoming gubernatorial race to “commit to ending this violence against women of color,” according to the announcement.

“We wouldn’t have to go all the way to the federal government if the governor was accountable to us, to working people in this state,” said JoAnn Lum, an organizer with the National Mobilization Against Sweatshops.

Hochul has avoided weighing in on this issue in the past. Spokespeople for Hochul and Rep. Lee Zeldin, her Republican challenger, have yet to respond to requests for comment.