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Hawkins to Cuomo: Repeal DOL Regulation Allowing Unpaid Labor on 24-Hour Shifts

Hawkins to Cuomo: Repeal DOL Regulation Allowing Unpaid Labor on 24-Hour Shifts

For immediate release: July 11, 2018

Howie Hawkins called on Governor Cuomo today to immediately repeal the NYS Department of Labor (DOL) regulation permitting employers to pay home care attendants on 24-hour shifts for only 13 of their hours on the job.

The DOL is holding a public hearing today on whether to make permanent the emergency regulation it issued last October in response to state court rulings calling the 24 hours work for 13 hours pay illegal.

The hearing takes place at 11:00 am at 55 Hanson Place in Brooklyn.

The DOL emergency regulation contradicts three recent state court decisions that home attendants must be paid for all 24 hours of a 24-hour shift. The DOL regulation has enabled employers to disregard the court rulings, thus continuing the industry’s standard practice of paying home attendants for only part of 24-hour shifts. The DOL is relying on earlier contrary rulings by federal courts in the southern and eastern districts of New York.

Hawkins sent the following statement to the National Mobilization Against Sweatshops, the Chinese Staff & Workers Association, and the Ain’t I A Woman Campaign, which were holding a news conference at 10:00 am before the hearing.

I call on Governor Cuomo to immediately rescind the Department of Labor regulation that defies state court orders and allows employers to pay 24-hour home attendants for only 13 hours.

Cuomo should go further and take action to outlaw 24-hour shifts, limit home attendant shifts to 12 hours, and – like most other workers under New York State law – pay overtime for home attendant work over 40 hours in a week.

Unpaid labor is slavery. Forcing home attendants, who are disproportionately immigrant women of color, to work 24-hour shifts without full pay is bad for the workers and bad for the patients.

The patients have been approved for nonstop care because their medical conditions require it, such as being bed ridden or suffering from dementia.

The home attendants are expected to work five or six straight 24-hour shifts a week without leaving the patient’s home. They are responsible for their patients well-being. But many agencies tell the home attendants to ignore patients’ needs at night and go to sleep. A home attendant who refuses to do that is at risk of being fired.

For the health and well-being of home attendants and their patients, we need a rational system to govern the work of home attendants.

  • Repeal the DOL’s emergency regulation.
  • Outlaw 24-hour shifts.
  • Limit home attendant shifts to 12 hours
  • Pay overtime for work over 40 hours in a week.

Governor Cuomo cannot credibly champion the rights of women workers if he lets this regulation stand. Cuomo cannot credibly criticize the cruelties of President Trump toward immigrant children or the victims of the hurricane in Puerto Rico if he does not end the cruelty in his own state toward home attendants and their patients.

Governor Cuomo has the power to correct his Department of Labor and he should take action immediately.

The three state court rulings from the first and second appellate divisions and the appeals court that outlawed unpaid labor on 24-hour shifts are Tokhtaman v. Human Care, LLC, 149 AD3d 476 [1st Dept 2017]; Andryeyeva v. New York Health Care, Inc., 153 AD3d 1216 [App Div 2017]; Moreno v. Future Care Health Services, Inc., 153 AD3d 1254 [2d Dept 2017]. The two contrary and earlier federal court decisions are Severin v. Project OHR (S.D.N.Y. June 20, 2012) and Bonn-Wittingham v. Project OHR (E.D.N.Y. May 17, 2017).

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