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DOL’s Home Care Live-In Regulations – Courts Divided, IBA May Rule Soon

State and federal courts are taking divergent paths on the issue of employer pay of home care workers providing live-in and 24-hour care. On Dec. 15, 2017, the U.S. District Court for the Southern District, in de Carrasco v. Life Care Services, Inc., ruled in favor of a New York State Department of Labor (DOL) opinion letter and emergency regulations which reinforce an employer’s right to pay home care workers 13 hours for a 24-hour shift, provided workers receive eight hours of sleep (five of those uninterrupted) and three hours of uninterrupted meals. Conversely, in class action suits brought by employees, state courts have ruled in favor of home care workers who claim they are entitled to minimum wage for each hour of a 24-hour shift.

LeadingAge NY has consistently advocated in support of the DOL opinion letter and emergency regulations which underscore the original intent of the policy. It maintains that payment for every hour of a 24-hour shift could upend the home care industry and result in institutionalization of patients who can be cared for at home. LeadingAge NY intervened in the Andryeyeva case in state court before the Appellate Division as amicus on behalf of New York Health Care, Inc. in support of the 13-hour rule.

Last week, the Urban Justice Center, a not-for-profit from New York City, challenged DOL’s emergency regulations before the New York State Industrial Board of Appeals (IBA). The IBA, an oversight board with authority to review, modify, or revoke DOL regulations, heard their arguments on Jan. 5th.

The legal issue in the case is whether the emergency regulation is “contrary to law.” The Urban Justice Center’s substantive arguments boil down to three points: the regulations are contrary to law because the entire 24 hours on shift constitute hours worked for the employer under the federal "predominant benefits" test; the regulation is bad policy because home health aides are already underpaid; and there is no demonstrated emergency to justify the regulations.

DOL vigorously defended its emergency rule. It maintains that the emergency rule was proper and consistent with 50 years of regulatory action that DOL submitted with its papers. DOL argued that the emergency rulemaking was based on the uncertainty created by the Tokhtaman case. It explained that the Appellate Division, which did not have the benefit of the record filed by DOL in this case, made bad law, and this regulation was DOL's attempt to remedy the Court's mistake.

There were some jurisdictional questions as to whether the IBA has authority to rule upon emergency regulations which were going to be reviewed post-hearing. If the IBA does decide the case, it is likely that a decision will be issued on or around Jan. 23rd.

LeadingAge NY will keep members apprised of the IBA decision and further developments. For a recent detailed overview of these legal developments, please click here. To view an earlier summary of the issue and to obtain a link to the emergency regulations, click here.

Contact: Dan Heim, dheim@leadingageny.org, 518-867-8866