Bill Text: NY A08064 | 2019-2020 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Places limits on the maximum amount of hours a home care aide may be required to work without voluntarily consenting to such an assignment.

Spectrum: Strong Partisan Bill (Democrat 13-1)

Status: (Introduced - Dead) 2020-01-08 - referred to labor [A08064 Detail]

Download: New_York-2019-A08064-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          8064

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                      May 31, 2019
                                       ___________

        Introduced by M. of A. EPSTEIN, BRONSON -- read once and referred to the
          Committee on Labor

        AN  ACT  to amend the labor law, in relation to requiring home care aide
          overtime to be voluntary

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The labor law is amended by adding a new section 167-a to
     2  read as follows:
     3    § 167-a. Hours of labor for home care aides. 1. For purposes  of  this
     4  section:  (a)  "Home  care aide" means a home health aide, personal care
     5  aide, personal care attendant, home attendant or other licensed or unli-
     6  censed person whose primary responsibility  includes  the  provision  of
     7  in-home  assistance with activities of daily living, instrumental activ-
     8  ities of daily living or  health-related  tasks,  or  the  provision  of
     9  companionship  or fellowship. The provisions of this section shall apply
    10  equally to services provided by home care aides who work on episodes  of
    11  care  as  direct  employees of the care recipient, certified home health
    12  agencies, long term home health care programs, or managed care plans, or
    13  as employees of licensed home care services agencies,  limited  licensed
    14  home care services agencies, or under any other arrangement.
    15    (b)  "Unforeseeable  emergent  circumstance" means an unpredictable or
    16  unavoidable occurrence that requires immediate action.
    17    2. Notwithstanding any provision of law to the contrary,  no  employer
    18  shall require a home care aide to work in excess of twelve hours per day
    19  or  fifty  hours  per week except as provided for in subdivision four of
    20  this section.  Any requirement of a home  care  aide  to  work  overtime
    21  contained  in  any  contract,  agreement  or  understanding  executed or
    22  renewed after the effective date of this section shall be void.
    23    3. The acceptance by any home care aide  of  overtime  work  shall  be
    24  voluntary.    Consent to work overtime must be expressly provided by the
    25  employee.  Consent to work overtime on a  specific  occasion  shall  not

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13045-01-9

        A. 8064                             2

     1  constitute  implied  consent to work overtime in the future. The refusal
     2  of a home health aide to accept overtime work shall not be  grounds  for
     3  discrimination,  dismissal,  discharge, threats, or any other penalty or
     4  employment decision adverse to the employee.
     5    4. The requirements this section shall not apply in case of an unfore-
     6  seeable emergent circumstance when overtime is determined necessary, and
     7  is  not  used  to fill vacancies resulting from short staffing, provided
     8  that the employer has exhausted  reasonable  efforts  to  obtain  proper
     9  staffing.  Where  an  unforeseeable  emergent circumstance is due to the
    10  delayed arrival of a home care aide who is relieving a  home  care  aide
    11  who  has  worked  the  maximum  number of hours for such day pursuant to
    12  subdivision two of this section, such  overtime  shall  not  exceed  two
    13  hours  without acceptance of such overtime pursuant to the provisions of
    14  subdivision three of this section.
    15    5. An employer shall not threaten, discharge or in  any  other  manner
    16  discriminate, penalize or take adverse action against a home health aide
    17  because they have made any complaint that the employee has been required
    18  to work overtime in violation of the provisions of this section:
    19    (a)  to  their  employer,  including  the employer's representative or
    20  agent;
    21    (b) to the commissioner or the department; or
    22    (c) to any other state or federal agency.
    23    6. (a) A home care aide may bring a civil action in a court of  compe-
    24  tent jurisdiction against any employer or his or her agent, or the offi-
    25  cer  or  agent  of  any  corporation,  partnership, or limited liability
    26  company, or any other person who violates subdivision two, three or five
    27  this section. An employer or other person who violates such subdivisions
    28  shall be liable for all legal and/or equitable relief as may  be  appro-
    29  priate  to  effectuate  the  purposes of this section, including but not
    30  limited to compensatory  damages  for  loss  of  consortium,  liquidated
    31  damages, punitive damages, and reinstatement and back wages, in addition
    32  to  injunctive  relief  and any other appropriate relief. An employer or
    33  other person who is found to have violated subdivision  two,  three,  or
    34  five  of this section shall also be liable for the payment of reasonable
    35  attorney's fees.
    36    (b) If the commissioner determines  that  an  employer  or  employer's
    37  agent or the officer or agent of any corporation, partnership, or limit-
    38  ed  liability company, or any other person has violated subdivision two,
    39  three, or five of this section the commissioner may issue sanctions  and
    40  penalties,  including,  but not limited to compensatory damages for loss
    41  of consortium, liquidated damages, and punitive damages,  and  may  also
    42  order reinstatement, back wages, injunctive relief, and all other appro-
    43  priate relief.
    44    § 2. This act shall take effect immediately.
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