On October 6, 2017, the New York State Department of Labor (“NYDOL”) issued an amendment to its Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”)1 in response to recent court decisions finding that non-residential 24-hour home care attendants, also referred to as aides, must be paid for their sleep and meal periods. The new amendment states that bona fide meal periods and sleep times may be excluded from hours worked by home care aides who work a shift of 24 hours or more in accordance with federal Fair Labor Standards Act regulations.

The Established Practice and Prior Key Court Decisions

Home care agencies have historically paid “live-in” home care aides 13 hours of a 24-hour shift in accordance with the NYDOL's well-established policy and guidance. That previously unchallenged pay practice, colloquially known as the “13-hour rule,” permitted employers of home care aides working 24-hour shifts, whether “residential” or “non-residential,” to pay aides for 13 hours, provided the aides are afforded 8 hours of sleep, 5 of which are uninterrupted, and 3 uninterrupted hours for meals.

As previously reported,2 within the past few months, a trio of New York State Appellate Division decisions refused to give deference to the long-standing NYDOL policy and guidance, and ruled that non-residential home care aides employed by third-party agencies must be paid for every hour of a 24-hour shift, regardless of sleep and meal periods.3

The Appellate Divisions took issue with the language of the Wage Order, which provides:

A residential employee – one who lives on the premises of the employer – shall not be deemed to be permitted to work or required to be available for work: (1) during his or her normal sleeping hours solely because such employee is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment.4

The Appellate Divisions essentially found that home care aides working for a third-party agency are “non-residential,” meaning they do not “live on the premises of the employer” and, thus, this exception in the Wage Order does not apply to them. Therefore, the Appellate Divisions found that the NYDOL’s policy in applying the 13-hour rule to all “live-in” employees, expressed in the challenged March 11, 2010 NYDOL Opinion Letter, should not be given deference. The NYDOL's policy provides “[I]t is the opinion and policy of [the NYDOL] that live-in employees must be paid not less than for thirteen hours per twenty-four hour period provided that they are afforded at least eight hours for sleep and actually receive five hours of uninterrupted sleep, and that they are afforded three hours for meals”5 Thus, the courts found, the home care agency defendants should have paid the “non-residential” live-in aides every hour of a 24-hour shift.

The impact of the Appellate Division decisions is potentially devastating to the home care industry. New York Labor Law violations are governed by a six-year statute of limitations. Many home care agencies will not be able to afford the potential past liability: They would be forced to close their doors.

The Amended Regulation

The NYDOL released its amendment to the Wage Order after industry complaints that the Tokhtaman, Andryeyeva and Moreno rulings will effectively put the home care industry out of business. The decisions also create a public health crisis whereby the most vulnerable population in New York – the disabled, elderly and infirm – who depend on home care to live safely in their homes will not receive the necessary care and may be forced into institutions. In addition, many home care aides will face unemployment due to the shuttering of agencies or lack of demand because staffing for live-in cases is simply no longer needed. Moreover, the Medicaid program does not have the funds necessary to pay live-in aides for every hour of a 24-hour shift.

The amended Wage Order, effective as of October 6, 2017, was issued on an apparent emergency basis without the public notice and public comment procedures that the NYDOL has typically followed with other amendments to its Wage Order.

The language of the amended Wage Order, §142.2.1(b), follows in bold type:

(b) The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer, and shall include time spent in traveling to the extent that such traveling is part of the duties of the employee. However, a residential employee–one who lives on the premises of the employer–shall not be deemed to be permitted to work or required to be available for work:

(1) during his or her normal sleeping hours solely because he is required to be on call during such hours; or

(2) at any other time when he or she is free to leave the place of employment.

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.

(emphasis supplied). The newly added language reaffirms the NYDOL’s policy and guidance that employers are not required to pay home care aides who work 24-hour or longer shifts for their meal and sleep times provided that the aides’ meal periods and sleep times are also excluded from hours of work under the FLSA.

The federal regulations cited in the amendment generally state that employees who receive bona fide meal periods, wherein the employees are completely relieved of their duties for, ordinarily, at least 30 minutes or more, are not deemed working during that time, and it is not necessary that “an employee be permitted to leave the premises if he[/she] is otherwise completely freed from duties during the meal period.”6 The cited federal regulations also generally state that an employee required to be on duty for 24 hours or more may agree with an employer to exclude a bona fide regularly scheduled sleeping period of not more than 8 hours from compensable hours worked.7 The federal regulation also contains the same restriction as the NYDOL’s 13-hour rule: if the employee does not get at least 5 uninterrupted hours of sleep, the entire 8-hour sleep period must be paid.

Implications

Although the NYDOL’s amendment to the Wage Order should provide grounds for employers to pay home care aides working 24-hour shifts according to the 13-hour rule and should influence future courts to favor employers of home health care aides who follow the “13 hour rule,” several issues remain open. For example, the revised Wage Order is not retroactive as written, and as such employers that previously relied on the “13 hour rule” might still be liable to 24-hour home care aides for unpaid wages before the October 6, 2017, Wage Order amendment.

It is hoped that New York’s highest court, the Court of Appeals, hears this issue immediately and reverses the Appellate Division decisions that invalidated long-standing DOL policy.8