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NYS Court of Appeals Upholds "13-Hour" Rule

As previously reported, the New York State Court of Appeals, the State’s highest court, recently issued its opinion in Andryeyeva v. New York Health Care, Inc. and the related case of Moreno v. Future Care Health Services, Inc., involving the “13-hour rule” for 24-hour/live-in home care services. The Court upheld the Department of Labor’s (DOL) interpretation of its regulations, allowing home care agencies to pay live-in aides for 13 hours of work if they are able to get eight hours of sleep (with at least five hours uninterrupted) and three hours off for meals.

According to the Court’s majority opinion, “DOL’s interpretation of its Wage Order does not conflict with the promulgated language, nor has DOL adopted an irrational or unreasonable construction, and so the Appellate Division erred in rejecting that interpretation,” relative to the 13-hour standard and its applicability to non-residential aides. At the core of the case was the Court’s deference to DOL’s longstanding interpretation of its own regulations, including specifically a 2010 opinion letter indicating that the 13-hour rule applied to all “live-in” aides regardless of whether they are “residential.” The employees in those cases, like many home health aides, are considered “non-residential” under the regulations because they were employed by an agency, not the patient/consumer. For decades, home care agencies have relied on this rule to compensate their aides working 24-hour shifts. A decision against the agencies would have resulted in a class action lawsuit and potential liability for many years of back wages.

The Court of Appeals left it to the lower courts to decide whether the plaintiff employees are entitled to class certification on "alternative bases." The employees had argued before the Court of Appeals that they could receive class certification regardless of the validity of the 13-hour standard because the employers did not meet “regulatory record keeping requirements” to document compliance with the 13-hour standard or "provide appropriate sleep facilities." The Court allowed those issues to “be considered” when the lower courts reevaluate "whether class certification is appropriate."

Simply put, providers could still be vulnerable to wage and hour claims for noncompliance with the standard, failure to document hours, or other related issues. Employers are strongly encouraged to review their policies and procedures to ensure that employees have agreed that sleep and meal times are excluded from hours worked. Providers should also review the sleeping facilities provided to live-in aides and ensure that policies and procedures are in place to document instances where employees do not receive adequate sleep or meal time.

LeadingAge NY filed an amicus brief in this case in support of the providers’ position and DOL's interpretation. Our attorneys at Hinman Straub have provided a memorandum summarizing the opinion and its potential implications for providers that have offered live-in services. We encourage you to review this memorandum carefully and share it with your labor counsel. LeadingAge NY will keep you abreast of any further developments on this matter.

Contact: Meg Carr Everett, meverett@leadingageny.org, 518-867-8871