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State Appeals Court Invalidates "13-Hour Rule” for “Live-In” Home Attendants

Last week, the New York State Appellate Division, Second Department, in Andryeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Services, Inc., rejected the New York State Department of Labor (DOL) “13-hour rule” as applicable to home care attendants who maintain their own residence. LeadingAge NY had intervened in the case as amicus (“friend of the court”) on behalf of New York Health Care, Inc. in support of the 13-hour rule.

Several recent court cases have challenged DOL’s interpretation and enforcement of New York’s minimum wage law as applicable to 24-hour live-in home care attendants. Under the DOL policy, “residential” employees need only be paid for 13 hours of every 24-hour shift (i.e., the 13-hour rule), provided they are given mean breaks and uninterrupted time to sleep. At issue is the applicability of this policy to home care attendants who maintain their own residence and therefore might not actually “live in” the home of their employer (i.e., “non-residential”).

In its decision in Andryeyeva and Moreno, the Appellate Division concluded that the 13-hour rule is inconsistent with the plain language of DOL regulations requiring payment of at least the minimum wage for all 24 hours of a live-in shift for aides who are not residential employees. The court concluded that when home care attendants are not residential employees who “live on the premises of the employer,” they are entitled to be paid the minimum wage for all 24 hours of their shift, regardless of whether they were afforded opportunities for sleep and meals. The decision also affirmed the lower court's decision to grant class certification, authorizing a class action lawsuit to move forward.

The Second Department's decisions followed the decision by the Appellate Division, First Department in Tokhtaman v. Human Care, LLC, further undermining the continued reliance on a 2010 DOL Opinion Letter (RO-09-0169) permitting agencies to pay all live-in home care attendants for 13 hours of every 24-hour shift. While both decisions are likely to be appealed to the New York Court of Appeals, the decisions could lead to a major change in costs to home care agencies and Medicaid managed care plans since home care attendants, depending on their living arrangement, may have to be paid for all 24 hours of a live-in shift.

If upheld, the decision could expose home care agencies to claims for minimum wage, overtime, and spread of hours pay from all employees that qualified as non-residential while employed as a 24-hour home care attendant. For now, both the Department of Health (DOH) and DOL have preliminarily indicated that current requirements will remain in place until the Court of Appeals decides whether to hear either of the cases.

LeadingAge NY is being briefed by counsels involved in these cases and will keep members apprised of next steps.

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