Seyfarth Synopsis: Effective October 6, 2017, the New York Department of Labor issued an emergency regulation amending the Miscellaneous Minimum Wage Order, which is designed to undermine two recent Appellate Division rulings that have held non-residential home healthcare workers must be paid for all 24 hours in a 24-hour shift. The Department of Labor’s position on this issue has been, and plainly remains, that home healthcare employees need to be paid for 13 hours in a 24-hour shift, so long as specified uninterrupted meal and sleep periods are provided. The Department of Labor’s interpretation on this issue is consistent with federal law.

Effective October 6, 2017, the New York State Department of Labor (“NYDOL”) revised the Miscellaneous Minimum Wage Order (“MWO”) to reaffirm its position that non-residential home healthcare workers on overnight shifts need be paid for only 13 hours out of a 24-hour shift, as long as the proper meal and sleep periods are provided and are uninterrupted. This interpretation is consistent with federal Fair Labor Standards Act.

The NYDOL has been following the rationale of its 2010 Opinion Letter, which interpreted 12 NYCRR § 142-2.1(b) as requiring live-in employees to be paid 13 hours per 24 hour period, provided they are afforded at least 8 hours for sleep, actually receive 5 hours of sleep, and are provided 3 hours for meals. As we’ve previously reported, two recent Appellate Division decisions in the First and Second Departments held that this rationale was incorrect, and found that a “non-residential” home healthcare employee must be paid for all hours present at a client’s home, including meal periods and time spent sleeping. Based on these decisions, employers in the industry faced an enormous financial burden and uncertainty, including the potential for retroactive application of the new line of case law.

This week, the DOL took the unusual step to issue an emergency regulation revising the MWO.

NYDOL regulations provide that minimum wage must be paid for each hour an employee is “required to be available for work at a place prescribed by the employer” except that a “residential employee — one who lives on the premises of the employer” need not be paid “during his or her normal sleeping hours solely because he is required to be on call” or “at any other time when he or she is free to leave the place of employment.”

The NYDOL revised the MWO, 12 NYCRR § 142-2.1(b), to state:

Notwithstanding the above, this subdivision shall not be construed to require that the minimum wage be paid for meal periods and sleep times that are excluded from hours worked under the Fair Labor Standards Act of 1938, as amended, in accordance with sections 785.19 and 785.22 of 29 C.F.R. for a home care aide who works a shift of 24 hours or more.

The FLSA regulations cited in the MWO provide that an employee who is required to be duty on for 24 hours or more may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of up to 8 hours, provided the employee is given adequate sleeping facilities and is actually provided with at least 5 hours of uninterrupted sleep and 3 hours of meal time. This provision requires an “express or implied agreement” or the 8 hours will be considered time worked.

However, with the newly revised MWO, employers in the industry face even more uncertainty. The revision was issued in the form of an “emergency” regulation, which means it is enacted for a temporary basis of up to 90 days. Although it may be readopted at that point for an additional 60 days, it must ultimately go through the formal proposal process to be adopted as a permanent rule. The rule may be challenged on that basis. A potential challenge to the regulation may also mean that the rationale of the appellate courts will ultimately prevail, unless the Court of Appeals intercedes. The regulation is not retroactive, so it is unclear how courts will resolve complaints brought by workers about time worked prior to the effective date. We will continue tracking this issue closely.