In New York, home healthcare aides provide vital in-home care and companionship services to elders and disabled individuals. Prior to 2015, employers were permitted to classify home health aides as exempt from overtime under the Fair Labor Standards Act (FLSA). Today, federal, state and city minimum wage and overtime laws apply to home health aides. Despite these legal protections, wage and hour violations remain far too common in the home healthcare industry.
The employment law attorneys at Lipsky Lowe LLP are highly regarded for their advocacy of home health aides. If your employer has failed to compensate in accordance with applicable laws and Labor Department rules, you have a right to take legal action. We can help you file a claim for unpaid wages, overtime, unpaid breaks or paid time off. When you consult us, you will have strength in your corner.
What are the rights of home health aides in New York?
Home healthcare aides must be paid the minimum wage according to the applicable state and city wage guidelines (here). In addition, home healthcare workers are eligible for overtime, breaks, and paid time off. It is important to remember that earning less than the minimum wage or not being paid overtime are forms of wage theft.
Overtime Protection for Home Health Aides
While home healthcare workers can receive overtime pay (one-and-a-half times their hourly rate), the rules vary based on whether or not care providers live in their workplace. A live-in worker is one who lives:
- In the private home of the individual receiving care permanently
- In the home for an extended period of time (typically 5 days per week)
- In the home for 5 consecutive days or nights
Home healthcare workers who do not live in their workplace are entitled to overtime for all hours over 40 per week, while live-in workers must receive overtime for all hours over 44 per week.
Home Healthcare Workers and Sleep Time
Home healthcare workers often work shifts of 24 hours or more, including sleep time. After two appellate court rulings in 2017 that found home health aides were entitled to be paid for minimum wage for all 24 hours of their shifts, the New York State Department of Labor (DOL) issued an emergency regulation clarifying its minimum wage rule. That issue is now being decided by the highest state court, the Court of Appeals. It is Lipsky Lowe’s position – along with many others – that home healthcare workers should be paid for the entire 24-hour shift. This is because these workers rarely – if ever – have uninterrupted sleep. The clients, rather, need their attention at all hours, requiring the workers to wake up and care for them.
Breaks and Paid Time Off for Home Healthcare Workers
In New York, home health aides are entitled to an unpaid meal break of at least 30 minutes, provided that they work 6 hours or more. In addition, under New York State law, home healthcare workers qualify for three days of paid time off per year, while aides in New York City are entitled to an additional 2 days of paid time off, after one year of employment.
Protections for Home Health Aides Against Discrimination, Sexual Harassment, and Retaliation
Home HealthCare Workers also have protections against discrimination and sexual harassment under the New York State Human Rights Law.
The protections against discrimination in hiring and firing apply to employers with four or more employees. It is also unlawful for employers to retaliate against home health aides who:
- Complain about discrimination or wrongful pay
- File a claim against the employer
- Participate in an investigation as a witness
Retaliation means taking adverse employment action against a home health aide such as firing or a reduction in his or her hours or compensation.
In addition, the protections against sexual harassment apply to all employers, regardless of the number of employees. Example of sexual harassment includes unwelcome sexual advances, verbal or physical conduct of a sexual nature, requests for sexual favors, or creating a hostile work environment.
Dedicated Advocates of Home Health Aides
At Lipsky Lowe, we are keenly aware that home health aides face an uphill battle fighting for their right to fair compensation. Our legal team is well-versed in the applicable city, state and federal wage and hour laws governing the home healthcare sector and continues to monitor developments of these issues in the New York courts.
Given that many home healthcare workers are women and minorities, they are at a higher risk of being victims of wage theft as well as discrimination and harassment. If you are a home health aide who has not been paid the minimum wage, overtime, or have not been provided with breaks and paid time off, we will help you consider all of your options.
We can help you file a claim with the state or city Division of Human rights to obtain back wages from your employer, or file a lawsuit on a collective or class basis. If you have been the victim of discrimination, harassment or retaliation, we will fight for your right to meaningful compensation. Please contact our office today to speak with our attorneys.