Hochul said in her State of the State address last week that she intends to put $10 billion over multiple years toward bolstering the health care workforce. But it’s still unclear how exactly that money will be allocated. A separate bill to raise the minimum wage for all home care workers, as a means of addressing the workforce shortage in the sector, is also competing for state funds and has gained more widespread support. Only about 5% to 7% of home care workers statewide are on 24-hour shifts, according to an estimate from the union 1199SEIU, which represents many of them. The union said it supports legislation to split 24-hour shifts in two.
Epstein said he is optimistic. “We’ve gotten much further in the last six months than we were able to get in the last three-and-a-half years [under Cuomo],” he said Friday. He said if Hochul doesn’t include money for his legislation in her executive budget, he will seek to get it added during the budget process.
The Home Care Association of New York State, which represents home care employers, supports the goals of Epstein’s bill, said Al Cardillo, the group’s president and CEO. But he said he doesn’t want to outlaw 24-hour shifts altogether, since having more aides coming in and out of homes might be hard on some patients. Instead, he said, the bill should help ensure workers are paid adequately when they do take on these shifts.
Ongoing Legal Challenges
Home health aides in New York have filed upwards of 100 class-action lawsuits against their employers in recent years, challenging the policy of getting paid for 13 hours of each 24-hour shift. Some home care staffing agencies have reached settlements with their employees in these cases, but overwhelmingly they have fought them. Home care employers have claimed that paying workers all the back-wages they’re owed would bankrupt them.
After judges in New York ruled in favor of workers in two of these cases in 2017, Cuomo’s labor department responded by issuing regulations reinforcing the 13-hour policy. It said at the time that it was necessary to “prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home.”
Those cases ultimately went up the ladder to the state’s highest court, which ruled in 2019 that the 13-hour policy was, in fact, legal. The decision still clarified, however, that home care employers must track the hours their employees work and ensure they are getting the amount of sleep and meal time they are due under the law. The ruling said if the workers don’t get that necessary rest, they must be paid for the full 24 hours.
But Lum and other advocates for home care workers say not much has changed since the 2019 ruling. The rally in Flushing was held to thank Assemblymember Ron Kim for a lengthy report he released this month calling out one nonprofit employer, the Chinese-American Planning Council Home Attendant Program, for failing to track and adequately compensate the hours employees work, among other allegations. Kim suggested the agency should be boycotted and denied funding if it doesn’t come into compliance with the law.
Wayne Ho, the president and CEO of the Chinese-American Planning Council, countered that “when home care workers have interruptions, [the Chinese-American Planning Council] has implemented an easy-to-use system for compensating our home care workers for those interruptions, which is not reimbursed [by Medicaid].”
Ho added that his organization also supports Epstein’s bill and hopes it will be fully funded in the budget.
The union 1199SEIU has placed clauses in many of its contracts with home care agencies requiring legal disputes to be settled out of court through private arbitration. The union says it is currently involved in arbitration over pay for 24-hour shifts with more than 40 separate home care agencies and that an arbitrator is on the verge of reaching an industry-wide ruling on workers’ claims.
Regardless of the outcome of these cases, those fighting to end 24-hour shifts say it’s necessary to protect workers’ health and prevent a vulnerable workforce from getting short-changed in the future.
“If we reinforce this notion that ending 24-hour shifts is contingent upon the funding,” said Lum, “it’s actually really damaging because it just reinforces this notion that we can allow this to continue.”
Editor’s note: This story has been updated to clarify the reason for the rally in Flushing, which was held to celebrate Assemblyman Ron Kim’s report calling out the Chinese-American Planning Council. It has also clarified that an arbitrator is close to reaching a ruling on workers’ claims, rather than a settlement being made between employers and workers represented by 1199SEIU.