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NYSDOL Issues Notice on 24-Hour/Live-in Aide Regulation

On Oct. 25th, the New York State Department of Labor (NYSDOL) published an official notice of its much-anticipated emergency rulemaking concerning compensation of 24-hour “live-in” home care aides in the State Register. NYSDOL’s regulatory impact statement confirms the intent of the rule, which is to clarify the longstanding policy otherwise known as the “13-hour rule” requiring compensation for 13 hours of a 24-hour shift if the aide was afforded 8 hours for sleep (at least 5 of which are uninterrupted) and 3 hours for meal breaks. The emergency rule comes in the wake of recent court decisions invalidating the 13-hour rule as it applies to live-in aides who maintain their own residences. Our general counsel, Hinman Straub, has prepared a memorandum summarizing the impact of the regulation.

NYSDOL had published a modification to its Minimum Wage Order for Miscellaneous Industries and Occupations (12 NYCRR Part 142 of regulations), effective Oct. 6, 2017, which further clarified that workers are not entitled to compensation for meal and sleep breaks under either the federal Fair Labor Standards Act or the New York State Labor Law, regardless of whether the worker maintains his or her own residence. The regulatory impact statement in the State Register includes the following statements from NYSDOL:

The purpose and intent of this rulemaking is to narrowly codify the Commissioner’s longstanding and consistent interpretation that compensable hours worked under the State Minimum Wage Law do not include meal periods and sleep time of home care aides who work shifts of 24 hours or more.

This emergency regulation is necessary to preserve the status quo, prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home, in the face of recent decisions by the State Appellate Divisions for the First and Second Departments that treat meal periods and sleep time by home care aides as hours worked for purposes of state (but not federal) minimum wage.”

While the regulation does not expressly provide for a retroactive effective date, the stated regulatory intent presents a clear desire for maintaining the status quo and codifying the NYSDOL Commissioner’s guidance as the correct interpretation of the regulation.

The Appellate Division, First Department’s April 2017 ruling in Tokhtaman v. Human Care, LLC and the Appellate Division, Second Department’s September 2017 rulings in Andryeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Services., Inc. invalidated NYSDOL’s interpretation of the previous version of its Wage Order as applied to home care aides who worked 24-hour shifts in their clients’ homes. LeadingAge NY intervened in the Andryeyeva case as amicus on behalf of New York Health Care, Inc. in support of the 13-hour rule.

LeadingAge NY and its general counsel have been actively discussing next steps in the Courts with other stakeholders. The defendants in Tokhtaman were denied leave to appeal from the Appellate Division and have more recently moved for leave to appeal directly with the Court of Appeals. If these court decisions are not overturned, they could lead to significant changes in costs and financial disruptions to home care agencies and possibly managed care plans, since affected home care aides, depending on their living arrangement, could have to be paid for all 24 hours of a live-in shift (including overtime) both prospectively and retroactively for up to six years. The statute of limitations for bringing New York Labor Law claims is six years, meaning back wages can be recovered from the time of the filing of a lawsuit going back six years in time.

LeadingAge NY has been advocating for state agency intervention in this issue and is pleased that NYSDOL has adopted the emergency regulation and published this important notice. However, it remains uncertain how the Courts will ultimately rule on the issue. LeadingAge NY will keep members apprised of further developments.

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