NY State Supreme Court in New York City

A home care worker has filed a class-action lawsuit against her employer, McMillan Home Care Agency, for failing to pay overtime.

The suit further contends that the New York City–based agency did not provide compensation for attending mandatory training sessions or reimbursement for uniform cleanings and required supplies such as latex gloves.

It also alleges that McMillan repeatedly falsified or misreported pay records.

State Provides Better Wage and Hour Protection

While regulations interpreting the federal Fair Labor Standards Act (FLSA) exempt home care aides from minimum wage and overtime protections, New York State law requires that overtime be paid to home care aides at time-and-a-half at the minimum wage — but not at the aide’s regular hourly wage.

The state law, however, does not extend this protection to “companions to the sick or elderly who live in their employer’s home and whose principal duties do not include housework.”

“The New York State labor law is these home care workers’ only line of defense from substandard jobs because the workers are excluded from federal minimum wage and overtime law,” said Staff Attorney Sarah Leberstein of the National Employment Law Project (NELP), one of three law firms that filed the case at the New York State Supreme Court.

“Upholding the state law is critical, because allowing violations in this crucial industry leaves workers defenseless to wage abuse — and puts all low-wage workers at risk.”

Allegations Made in Lawsuit

The suit contends that Josefina Toledo Montero, a home care aide, and her coworkers frequently worked up to 60 hours or more for the home care agency and were not paid overtime after 40 hours, as required by the state law.

Instead of paying the overtime rate, the home care agency paid these workers their regular hourly wage. After three years on the job, Montero’s hourly wage had increased to $7.25.

The class could potentially include hundreds of workers since the suit covers all of the home care workers employed by the agency for the last six years — the state’s statute of limitations for wage claims.

Wage Violations Rampant

A recent study published by NELP, Working Without Laws: A Survey of Employment and Labor Violations in New York City (pdf), found that nearly 83 percent of home care workers surveyed experienced overtime violations and 84 percent worked “off the clock” without receiving pay for part of their working time.

“Cheating home care workers out of wages they have earned may pad the pockets of unscrupulous employers but it hurts everyone else in the system — the workers robbed of their pay; the families that depend on those wages for basic support; and the elderly and disabled, whose care is at most risk of compromise when the people who care for them are treated unjustly and cheated of wages they have earned,” said Leberstein.

Campaign to Extend Labor Protections

PHI has launched a social media campaign that calls on Labor Secretary Hilda Solis to end the exclusion of home care workers from minimum wage and overtime protections.

– by Deane Beebe