Caring for those who Care for Us: DCA Puts Home Healthcare Industry on Alert with Paid Sick Leave Investigations
By Liz Vladeck, Deputy Commissioner for DCA’s Office of Labor Policy & Standards
This past Sunday was the third anniversary of New Yorkers being entitled under City law to take paid sick days off from work. It’s only been 11 years since the first paid sick leave law in this country was adopted in San Francisco. Right up through the 20th century, American workers never had a legal right to a paid day off when they woke up with the flu, or had to take their sick kid to the doctor.
There have been numerous important legislative victories in the last decade to advance the rights and protections that we are entitled to at the workplace, many at the state and local level, like the increase in minimum wages, and fair workweek scheduling practices. But ensuring those rights are honored in practice is still a major challenge, especially given the current presidential administration.
Workers of color, women, immigrant workers, and other groups historically subject to discrimination continue to be more vulnerable to violations of their rights at work. This is especially true in one of the largest private-sector workforces in New York City — the home care aides who make it possible for seniors and people with disabilities to stay in their homes while receiving intensive and professional care. There are about 203,000 home health and personal care aides in New York City; the vast majority of whom are woman of color and/or immigrants. Unfortunately, wage and hour and other labor and employment law violations among this workforce are rampant, despite recent reforms meant to raise standards like the State’s “wage parity” law and extension of federal wage and hour rights to the workforce.
New York City created DCA’s Office of Labor Policy & Standards a little more than a year ago as part of a national movement by cities and states to ensure our economy works for all in the face of record inequality. OLPS enforces eight key city laws that protect and enhance workers’ rights (soon to be nine, when fair workweek laws take effect later this year), and conducts research, policy, outreach and education on many other state and federal laws. Our enforcement of the City’s Paid Sick Leave Law gives us a window into the city employers’ compliance with labor standards more broadly.
What we have found is that general compliance issues in the home health industry are mirrored in our enforcement of paid sick leave. More than 35 percent, or 6,183, of all workers for whom OLPS has recovered restitution in our two-plus years of enforcement work have been home care aides. Home care aides as a group have filed the third highest number of complaints received by our Office; OLPS has handled 94 home health agency cases leading to nearly $200,000 in fines and more than $475,000 in restitution to workers.
One of the Office’s cases is on behalf of a home health aide I’ll call Ms. J, and her co-workers. She’s been a home health aide for four years, and struggles to meet her own child care needs for her three children. Ms. J worked for a large home health agency in Brooklyn that has a case pending for hearing; OLPS estimates the employer’s liability for paid sick leave violations for the workforce to be upwards of a million dollars. Ms. J’s allegations, which OLPS’ investigation bore out, include that the employer had no sick time policy, did not provide workers with a notice of employee rights, and refused to provide paid sick leave when Ms. J took her sick son to the doctor. All of these claims are violations under the City’s law. She also told us that the employer violated her rights under wage and hour law, including requiring her to buy her own supplies like gloves. She now works for a different agency. Workers like Ms. J often face retaliation when they try to use paid sick days — several workers have told OLPS about being taken off the schedule and removed from the dispatch system after requesting paid sick leave.
Experience and scholarship tell us that industries with high rates of complaint and high percentages of substantiated violations require particular intervention by enforcement bodies if a culture of non-compliance is to be shifted. The problems with the home healthcare industry described above are one reason that Mayor de Blasio, the City Council and advocates created a Division of Paid Care and placed it within OLPS. The particular challenges create great need for extra attention to be paid to these workers who represent our critical human infrastructure, but whom our society clearly undervalues.
This is why OLPS is shifting our enforcement resources to focus on industries that tend to have higher rates of labor and employment law violations. Using the proactive enforcement authority granted to it under the City Charter, the Office has sent 39 notices of investigation and requests for documents to home health agencies around the city. The agencies include a broad cross-section of agencies across the boroughs and collectively employ more than 33,000 workers. This investigation will provide a comprehensive look at existing practices around compliance with paid sick leave, and ensure both that employers are clear about their labor and employment law obligations, and that workers know and can use their rights.
We want to make it clear to this industry that has had so much trouble complying with the law in the past that New York City is paying close attention to its treatment of the workers who are the underpinnings of the city’s economy. As a recent report by the Caring Majority showed us, middle class families rely heavily on paid care workers in order simply to be able to themselves go to work every day (families work to pay for care, and pay for care in order to work). As our society ages and more working adults have parents in need of full time care, labor standards must come to reflect the critical role of home health aides in our society. We hope that our proactive investigation of this industry will contribute to that shift.
