Woman Loses Suit On Wages

By: Carrie Mason-Draffen
Newsday
June 15, 2003

A Queens home health-care worker lost her bid to recover minimum wage and overtime payments from her Long Island employer, after a judge ruled recently that she wasn't covered by federal labor laws requiring such payments.

The case, which tested the limits of the Fair Labor Standards Act regarding home attendants, is significant because it affects thousands of local workers employed in home health care, a fast-growing industry.

The Queens worker, Evelyn Coke, worked for East Meadow-based Long Island Care at Home for several years beginning in 1997, attending to elderly patients, her former employer said.

Federal wage and hour statutes exempt workers such as Coke from overtime and minimum wage. However, her lawsuit maintained that the Department of Labor didn't intend to extend the exclusion to workers employed by agencies. So, she said, her employer violated federal law when it failed to pay her 1 1/2 times her hourly rate for the hours over 40 she worked in a week. In addition, she said in the suit that her weekly pay worked out to less than the federal minimum of $5.15 an hour.

Long Island Care at Home maintained that Coke earned well over $7 an hour and was paid the minimum wage and overtime required under state law.

That state law, known as the Miscellaneous Wage Order, matches the federal minimum, but the overtime rate is based on the minimum wage rather than the worker's hourly wage.

The federal wage statutes don't distinguish between privately hired and agency-employed attendants. The law states that employees exempt from overtime and minimum wage include "domestic service employees employed to provide companionship services for individuals who because of age or infirmity are unable to care for themselves."

And U.S. District Judge Thomas C. Platt in Central Islip cited that law in his May 23 decision

Neither Coke nor her lawyer could be reached for comment.

Maryann Osborne, who owns Long Island Care at Home, said she fought the allegations as "a matter of principle. "We didn't do anything wrong."

Her lawyer, Arnold Klein of Meltzer, Lippe & Goldstein in Mineola, said the judge confirmed what other courts have found. "Every federal circuit court that has looked [at this issue] has determined that the regulations were proper."

But Jeff Cappella, a spokesman for the Washington-based Service Employees International Union, whose members include home health-care workers, said the companionship exemption in federal wage and hour statutes is outdated. He said the duties of home health-care companions have been transformed over the years. These workers now have the same housekeeping and medical-service duties as employees in nursing homes and assisted-living sites who are covered by the wage statutes, Cappella said.