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.
In Wang v. Phoenix Satellite Television US, Judge Castel in the Southern District of New York held that an unpaid intern has no protection from sexual harassment under the New York City Human Rights Law (NYCHRL). The plaintiff in that case was a masters’ degree student at Syracuse University who was hired as an intern for Phoenix, a company producing Chinese language news. She alleged that her supervisor sexually harassed her and denied her a permanent job when she refused his sexual advances. Judge Castel held that Ms. Wang could assert her claim relating to Phoenix’s failure to hire her, but dismissed her claim for sexual harassment, holding that because Ms. Wang was not being paid, she was not an employee, and therefore not protected by the NYCHRL.The Human Rights Law does not define “employee,” and is silent on whether it includes unpaid interns. However, the court’s decision does not address whether the plaintiff should have been paid, and if so, whether that would make her an “employee” under the NYCHRL. Ms. Wang didn’t argue that she was, and did not bring a minimum wage or overtime claim. But the facts of the case may have supported such a claim. According to Ms. Wang’s complaint, her duties included assisting the reporters with shooting news footage, drafting scripts, and editing video footage. She also scripted and reported her own stories on-camera. From this description, it seems that Phoenix was violating the Fair Labor Standards Act and the New York Labor Law by not paying Ms. Wang for her work. For an internship program to be legal, the Department of Labor sets forth a six factor test, each of which must be met: 1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.
http://www.dol.gov/whd/regs/compliance/whdfs71.pdf . If Ms. Wang was actually performing the duties of a reporter, the internship would not pass factors 3 and 4. Presumably, if Ms. Wang didn’t script and report on her stories, a regular employee would have. Interns are not supposed to be an unpaid replacement for another employee, and an internship is not to be an unpaid, months-long trial employment. The persistence of these arrangements both unjustly enriches employers, and forecloses entire fields of employment from people who cannot afford to work for free. Ms. Wang should be entitled to be free from sexual harassment – she should also be paid for her work.
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.