Home health providers protest 24-hour shifts after ‘insulting’ settlement reached

Caitlin Kelmar
·5 min read

Lai Yee Chan, a home attendant who worked 24-hour shifts in New York City providing health-related personal care, said she received a $200 check in late 2014 for roughly 6,000 overtime hours.

Chan said she viewed the issue as a case of wage theft and rallied other home attendants and filed a class-action lawsuit in 2015 against her employer. Now, years later, workers and advocates are speaking out and protesting in Chinatown in response to what they say is an “insulting” settlement deal.

Chan, who works for the Chinese-American Planning Council, saw her organizing set off years of legal battles and grassroots organizing. It culminated in a $30 million settlement in March between 1199 Service Employees International Union, the health care union representing more than 100,000 home attendants in the city, and 42 home care agencies.

Divided evenly among all the workers, the settlement would give $250 — only $50 more than Chan originally received — to each person, or less than two days of back pay for a 24-hour shift worker, according to the Ain’t I a Woman Campaign, a women-led national outreach effort to end sweatshop conditions.

The union said only 5% to 7% of the home health aides it represents work 24-hour shifts, so workers like Chan will receive significantly more than $250. But even if the $30 million compensation fund were split among those who worked 24 hours, according to estimations from “Ain’t I a Woman," each person would still receive less than $4,000 — a sliver of the total overtime Chan is owed.

“It sounds like they’re looking down on us Chinese women, like we’re so cheap and we’re just begging for money,” Chan, 67, told NBC Asian American through an interpreter. “This is violence against us, and we’ve had enough.”

Overtime pay for Chan alone, she said, amounts to more than $250,000.

Wayne Ho, chief executive of Chinese-American Planning Council, said the agency has for years advocated to abolish the 24-hour shift but has no power to do so itself. Because the organization is Medicaid-funded, he said, it has to comply with state rates and rules, and the state only reimburses the agency 13 hours for 24-hour shift work. Any change to the current system, he said, is possible only through new legislation.

“We recognize the 24-hour rule is not fair for workers or patients, but this is a systemic issue,” Ho said. “The solution starts at a state level, not with one home care agency at a time.”

Studies and lawsuits show that wage theft and labor law violations run rampant in the home care industry, which is built on the backs of older immigrant Asian and Latina women. New York state law allows employers to pay workers for 13 hours of a 24-hour shift, provided they receive at least eight hours of sleep — five of which must be uninterrupted — and three hours of meal breaks.

For women like Chan, who has been a home attendant for more than two decades, these rules for mandated breaks are often violated. For eight years, she said she worked around the clock for a patient who was left half-paralyzed by a stroke. During the day, she cooked, fed and bathed him; at night, she woke up every two hours to flip his body sideways, so he wouldn’t choke in his sleep.

Sarah Anh, an organizer with the Ain’t I a Woman Campaign, said the settlement sets a dangerous and demoralizing precedent for vulnerable workers in other industries fighting against deplorable conditions. Many women, meanwhile, continue to work around the clock for half the pay.

“The most insidious thing about this settlement is that it lets off employers with a slap on the wrist,” Anh said. “What does it mean when women — Asian women, immigrant women, Latino women — sound the alarm about what happens in their workplaces and do everything you’re supposed to do in American legal society, and their employers are still behaving the same way as they were seven years ago?”

After suing the agency, Chan said she now works split shifts from 8 p.m. to 8 a.m., for 13 hours of pay. But she experiences chronic elbow pain and insomnia, for which she cannot afford treatment. Decades of around-the-clock work also took a toll on her family life: Her husband had to quit his job to look after their children, whom she barely saw as they were growing up.

There’s progress on the legislative level. New York City Council Member Christopher Marte, D-Manhattan, who represents Chinatown and the Lower East Side, introduced a bill earlier this month to outlaw around-the-clock workdays for home attendants, banning shifts longer than 12 hours except in emergencies.

Prior to negotiating the settlement, Chan said union representatives told members that said the health care industry would collapse if the agencies were forced to pay the estimated $6 billion needed to cover back pay for every single worker.

Ho said the agency’s home attendant program has a $200 million budget, more than 95% of which is spent on employee compensation and benefits. Should the organization be forced to compensate every home attendant, he said, it would go bankrupt.

Community organizers like Anh find the reasoning unacceptable.

“You can’t say, ‘The law will continue to be broken until we find some magic pot of money,’” she said. “You can’t build an industry based on free labor of women.”

Since the settlement was announced, dozens of other immigrant women who work in the home care industry have held numerous protests on Chinatown's streets. Chan, for her part, said she won’t cash out the settlement money and that she plans to delay her retirement so she could keep fighting to end the 24-hour shift.

“I keep my job because I want to keep people informed,” she said.