Beranbaum Menken LLP is at the forefront of the fight to get home health aides who work 24 hour shifts all the wages they are entitled to by law. Many home care agencies pay their aides a flat rate for a 24 hour shift which is less than the minimum wage. Even if a union’s collective bargaining agreement (CBA) endorses this practice, it is still against the law. Despite this, some agencies try to avoid responsibility for underpaying their workers by asking the court to dismiss the case because of the CBA. Beranbaum Menken recently prevailed on this issue in Brooklyn Supreme Court, where Justice Nancy Bannon denied a motion by Project O.H.R. to dismiss a case seeking pay for 24 hour shifts. Project OHR had unsuccessfully argued in another case that the CBA required a home attendant’s lawsuit be dismissed; Justice Bannon held that since OHR made the argument once and lost, it couldn’t try it again in a different case. The case will proceed on the home attendant’s claims that if you work 24 hours, you should be paid for 24 hours.
Beranbaum Menken is representing numerous home attendants who were not paid the minimum wage for each hour of their 24 hour shifts. Our clients work an important and difficult job, caring for the aged and infirm in their homes, and they deserve to at least be paid for the hours they work. Yesterday, Justice Demarest in Kings County Supreme Court in Brooklyn recognized this, and granted our motion to certify the case as a class action in Andryeyeva v. New York Health Care, Index No. 14309/2011. The court rejected the employer's argument that it need not pay our clients for each hour of their 24 hour shifts, because they allegedly had the opportunity to eat and sleep at night. Aside from being factually untrue - patients are not given 24 hour home attendant care, unless they need help 24 hours a day - this argument ignores the fact that under New York law, if an employee is required to be at a certain location, ready to work when needed, that employee must be paid for all of those hours. Click here to read the decision.
Many home health agencies do not pay their home health aides for the overnight hours of their 24 hour shifts. This is a true hardship for those aides, since the patients they care for, many of whom suffer from dementia, require care throughout the night. Beranbaum Menken has brought several lawsuits challenging this practice, since under New York law, if an employer requires a worker to be in a particular place, and available to work, then that worker must be paid at least the minimum wage for that time, whether working or not. See 12 N.Y.C.R.R. § 142-2.1(b). In one of those cases, Andryeyeva v. New York Health Care, which is pending in Kings County Supreme Court, Commercial Division, Judge Demarest rejected the employer’s argument that it did not have to pay home attendants for their overnight work so long as they were afforded three uninterrupted hours for meals, and eight hours of sleep, five uninterrupted. Click here for the decision: Decision on NYHC first CC motion Judge Demarest held that “the issue of hours afforded for uninterrupted sleep or meals is irrelevant.” This makes it very likely, in our opinion, that our clients will be able to prevail on their claim for their unpaid overnight minimum wages not just for themselves, but for a class of all home attendants who worked 24 hour shifts for New York Health Care, which formerly did business as New York Home Attendant Agency.