A group of New York City home health aides is suing the state Department of Labor in an attempt to force the agency to resume an investigation of their allegations that they were not fully compensated for their time during 24-hour shifts.
The state was already investigating wage theft claims made by approximately 120 home health aides last year when the workers got a decision in their favor in a separate arbitration between the workers’ unions, 1199 SEIU and others, and dozens of private home care agencies.
Finding workers had not been paid money due for rest and meal times that they had instead spent working, the arbitrator determined the employers must pay $30 million into “special wage fund” covering unionized home health aides employed by 42 different agencies, including some of the workers whose claims were also under review by the Department of Labor (DOL).
Some workers slammed the resulting settlement, claiming the award amounted to pennies on the dollar per worker. Aides had hoped that the state Department of Labor would continue its own investigation, which began in 2019. Instead, beginning this May, the agency sent out notices to workers who had submitted complaints to its wage theft division, informing them it was abandoning its probe.
Some of the letters referenced mandatory arbitration clauses in the union’s collective bargaining agreements.
“We decline to investigate the allegations presented any further,” one letter read. “We understand other means are available for a resolution of your claim. Our decision is not a determination as to the validity of your claim.”
Lawyers for the aides argue in the class-action lawsuit to be submitted in state Supreme Court in Albany on Friday that the agency abandoned its “statutory authority to enforce the New York Labor Law” by closing the cases.
State DOL spokesperson Aaron Fallon said the agency “cannot comment on pending litigation.”
Gui Zhu Chen, who’s 65 and lives in Brooklyn, said that she is “very angry” with the agency’s decision to close its investigation into her claims and others. Her lawyers say she is owed approximately $189,000 in unpaid wages for time worked off the clock.
“I want them to immediately abolish 24-hour workdays and to give us the money we earned through our blood, sweat and tears,” Chen, a lead plaintiff in the case, said through an interpreter.
“It feels really unfair that the agency would stop so suddenly,” she added.
The 2022 settlement between the unions and the home health agencies was the culmination of a yearslong battle by “live-in” home health care aides, who filed multiple class-action lawsuits claiming that they were unfairly compensated under state policy that allows them to be paid for only 13 hours of a 24-hour shift.
Under state labor law, 24-hour home care workers are compensated for only 13 hours of work a day, under the condition they get at least 5 hours of uninterrupted sleep and three hours for meals a day. But the workers claimed they routinely worked up to 96 straight hours without getting either requisite sleep and meal time, or the extra pay they were owed for not getting prescribed sleep and meal time.
Beginning in 2015, 1199 SEIU and other unions began including clauses in their collective bargaining agreements requiring mandatory arbitration for wage and hour disputes. The unions consolidated claims against 42 different agencies into a single arbitration case. The 2022 settlement covered more than 100,000 current and former home care workers.
The payments that employers were ordered to pool in the $30 million common fund to be distributed to claimants “is the maximum that can be imposed without causing serious disruption and upheaval to a vital service,” wrote arbitrator Martin Scheinman, in his decision finding the employers had committed wage violations. Scheinman noted that many of the employers are nonprofits and that home health care is substantially funded by Medicaid.
The state DOL indicated to home health aides that it would stop investigating their claims beginning in May 2023, more than a year after their unions and employers reached the settlement agreement.
In interviews with THE CITY and in the complaint filed Friday, attorneys for The Legal Aid Society and the National Center for Law and Economic Justice, who are representing the home health aides, argue the 2022 settlement does not preclude the state DOL from continuing its independent investigation into the aides’ wage theft complaints.
The state DOL “has an independent responsibility with an authority to enforce the laws on behalf of the people of the state of New York. And that’s its duty — its duty isn’t to the unions,” said Legal Aid attorney Richard Blum. “It has a separate, independent duty and they seem to have summarily abandoned that duty here.”
In the complaint filed Friday, lawyers for the aides contend that dropping the cases because of the mandatory arbitration agreements runs not only contrary to the agency’s own mandate, but also to the position of the U.S. Department of Labor. In a March 2023 post on its website, the federal agency affirmed that it “vigorously prosecute(s) violations at workplaces where workers are bound by mandatory arbitration.”
A group of home health care workers began submitting wage theft complaints to the state Department of Labor in late 2018, years after their unions began including mandatory arbitration clauses in their collective bargaining agreements. By February the following year, the agency informed those aides that it would be picking up their case, according to the complaint.
In an email to one of the aides in December 2019 cited in the complaint, a state Department of Labor investigator described the agency’s findings as “overwhelmingly corroborative” of the home health aides’ complaints of wage theft.
The complaints reviewed by the state DOL include those of 66-year-old Gui Hua Song, who is owed $177,000 in unpaid wages, her lawyers claim. Song attests to working up to 96 consecutive hours a week for 11 years, until she retired in 2020.
In an interview with THE CITY through an interpreter, she said that she was bewildered to receive a letter from the agency in May indicating it was no longer investigating her claim, even after a state representative purportedly had called her twice previously to assure Song that, in her words, “it’s a very clear case and we are hopeful for you to be compensated” for her unpaid labor.
“I’m joining this lawsuit because I am angry,” Song said. “I want the 24-hour workday — not 24-hour care — to be abolished and to have my stolen wages returned.”
Aides say the grueling schedules have taken a toll on their physical and mental health. As a result of working 96-hour shifts without meal or rest breaks for six years, Chen said: “My body is falling apart.”
The aides are quick to point out that the grueling schedules hurt their vulnerable patients — including centenarians, cancer patients, and people with dementia — the most.
“Our patients need to receive our 100%,” María Rodríguez, another plaintiff in the case, said in Spanish. “I cannot give my all if I can’t sleep, if I’m anxious, if I’m being systematically robbed.”