State Labor Department Clarifies Pay Requirements for “Live-in” Home Attendants

The New York State Department of Labor (DOL) recently modified its minimum wage regulations to clarify its longstanding interpretation that “live-in” home attendants who work 24-hour shifts do not need to be paid for meal breaks and sleep time. This action comes in the wake of recent court decisions invalidating DOL’s so-called “13-hour rule,” which requires compensation for 13 hours of a 24-hour shift provided the home care worker has access to meal breaks and a period of uninterrupted sleep.

DOL published a modification to its Minimum Wage Order for Miscellaneous Industries and Occupations (12 NYCRR Part 142 of regulations), effective Oct. 6, 2017, which states the following:

“(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.” [New text highlighted]

This change further clarifies 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. LeadingAge NY has been advocating for state agency intervention in this issue and is pleased that DOL has adopted this emergency regulation. However, it remains uncertain how the Courts will ultimately rule on the issue.

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 DOL’s interpretation of the previous version of its Wage Order as applied to home attendants who worked 24-hour shifts in their clients’ homes. LeadingAge NY had intervened in the Andryeyeva case as amicus (“friend of the court”) on behalf of New York Health Care, Inc. in support of the 13-hour rule.

LeadingAge NY and its counsel have been meeting with other stakeholders and actively discussing next steps in the Courts. If these decisions are not overturned, they could lead to significant changes in costs to home care agencies and Medicaid managed care plans, since home care attendants, depending on their living arrangements, could have to be paid for all 24 hours of a live-in shift both prospectively and retroactively for up to six years. The statute of limitations for bringing New York State 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 will keep members apprised of further developments.

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