Throughout the past several months, New York City officials have been investigating area home care agencies following reports of widespread noncompliance with labor laws and regulations. Findings from the major enforcement initiative — which has already resulted in tens of thousands of dollars in restitution and fines — were formally announced Tuesday by the New York City Department of Consumer Affairs (DCA).
From an industry perspective, the effort marks the latest example of the added scrutiny facing the booming home care industry from local and national regulators alike, sources told Home Health Care News.
“This is similar to what we’re seeing from the United States Department of Labor, where they have identified the home care industry as a high-risk industry with respect to its employees and their treatment,” Angelo Spinola, a shareholder at international labor and employment legal firm Littler Mendelson, told HHCN. “It appears that DCA is intentionally identifying and targeting home care companies with the idea of sending a message to the industry that it must take [labor] laws seriously.”
Launched in July of last year, the New York City investigation involved 42 home care agencies that combined employ more than 50,000 workers. Spearheaded by DCA’s Office of Labor Policy Standards, the investigation included interviews with more than 500 workers, along with an extensive review of agency documents.
Targeted home care agencies employ roughly one-third of all home care aides in New York City, according to DCA.
The investigation focused largely on the city’s Paid Safe and Sick Leave Law that first went into effect in April 2014.
“We want New York City’s home care aides to know that we are working hard so they can exercise their rights,” DCA Commissioner Lorelei Salas said in a statement. “We also want to make it clear to home care agencies across the five boroughs that lack of compliance with the law will not be tolerated.
Investigation yields more than $42,000 in restitution
Overall, home care aides account for the third-largest source of complaints associated with the Paid Safe and Sick Leave law since it went into effect more than four years ago, according to DCA.
Among the investigation’s findings, DCA found widespread denials of sick leave requests and workplace-wide restrictions regarding its use. The department also found multiple instances of retaliation when workers tried using sick leave.
Besides paid time off and sick leave, the investigation looked into compensation and wage parity complaints, highlighting “significant evidence” of minimum wage and overtime violations, including inadequate compensation for 24-hour shifts, according to DCA. New York’s “13-hour rule,” or the allowance of home care aides being paid for 13 hours of work instead of an entire 24-hour shift, has long been in the spotlight.
DCA has already settled 21 cases as a result of its investigation.
Thus far, those settlement cases have yielded $42,731 in restitution for home care aides and more than $23,448 in fines. Some agencies have also agreed to take corrective actions, such as appointing a compliance offer to help ensure sick leave and wage rules are being met.
Two cases have been referred to the New York State Attorney General’s Office for further investigation. More than a dozen others are also being sent to the health and labor departments, along with the Office of the Medicaid Inspector General.
“Home health aides provide critical care and support to our vulnerable loved ones,” Attorney General Barbara D. Underwood said in a statement. “Yet the widespread labor violations we’ve found harm these workers, who already put in long hours under difficult conditions at minimum wage.”
DCA plans to make policy recommendations that “increase transparency of rights” and “promote a more equitable workplace” for home care workers.
The investigation does not name any home care agencies directly.
Labor demands hold agencies accountable
Over the past decade, the number of New Yorkers reporting paid care as their primary occupation has grown from 176,000 to 202,000 — and that figure is expected to grow substantially in years to come. By 2040, New York City will likely be home to 1.4 million seniors, with approximately 70% of them needing long-term care, according to analysts.
Nationally, the U.S. Bureau of Labor Statistics ranks home care aides and personal care aides first and second, respectively, in terms of occupations expected to see the most rapid job growth through 2026.
Rising demand and the limited supply of workers has led to a highly competitive hiring environment, making the recruitment and retention of workers a chief concern for home care agencies around the country. To some extent, that reality has created a natural mechanism for making sure agencies are treating workers fairly and upholding their end of labor laws, Spinola said.
“The competition alone requires that these agencies provide the best benefits that are possible, the best wages that are available, in light of what you can actually charge the consumer,” he said. “The competition should dictate the [labor] market rather than legislators and regulators.”
Reflective of what’s being done in New York City, “more and more” states and city governments are passing sick leave, scheduling and wage theft ordinances related to home care workers, Spinola said.
The Chicago City council, for example, has put together a Fair Workweek Ordinance that requires employers to post work hours multiple weeks in advance. New York has a similar piece of pending regulation that applies to fast food and retail that could eventually impact the home care industry as well, Spinola said.
“Some of these laws seem one-sided,” he said. “Those types of laws are creating a burden.”
Keeping track of paid time off, sick leave and wage laws has become increasingly complex in recent years. That’s especially true when considering the interplay of federal and state changes and the emergence of several overlapping and still unsettled legal rulings, according to the Home Care Association of New York State (HCA).
“Compliance with federal, state and local wage, hour, and leave laws is fundamentally required of all home care providers,” Roger Noyes, HCA communications director, said in a statement provided to HHCN. “HCA regularly educates home care providers about the intricacies of these laws and regulations, stressing the priority and mandatory nature of compliance.”
To help keep its members educated on the latest regulatory changes, HCA plans on holding a compliance forum in October.
Written by Robert Holly
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