24-Hour Shift Cases: Now Far Too Costly To Service?

Executive Summary. Last week, a Manhattan Supreme Court Justice denied a motion to dismiss a class action lawsuit against Chinese–American Planning Council Home Attendant Program, Inc., brought for unpaid wages, overtime, and failing to pay workers properly under the Wage Parity Act, among other alleged violations. That alone is not newsworthy. What is newsworthy is the court’s statement that “(a)rguably, 12 NYCRR 142-3.1 (b) (a NYS Department of Labor Wage Order) indicates that an employee who works a 24-hour shift is entitled to 24 hours pay ….” Decisions from justices in both the Manhattan and Brooklyn Supreme Courts have now reached this same conclusion, which is very troublesome for agencies continuing to service these cases.

The Court’s Reasoning Why 24 Hours Wages Are Due

The court said that the Wage Order differentiates between 24-hour shift residential employees (who have no other home other than the client’s) and non-residential employees (who have their own home, in addition to the client’s), allowing an agency to deduct sleep-time and duty free time only for residential employees. Quoting from the Wage Order, the court found significant the omission of non-residential employees from the following exception:

(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 to work: (1) during his or her normal sleeping hours solely because such employee 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.

The court added that no deference was due to a NYS DOL 2010 Opinion Letter which said that residential and non-residential employees should be treated the same for purposes of these deductions from hours worked, because “courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language.” Further quoting from the Wage Order, the court also added that “Employees who are ‘on call’ are considered to be working during all hours that they are confined to the workplace including those hours in which they do not actually perform their duties.”

This reasoning is especially significant because it is broader than the U.S. Department of Labor’s (“DOL”) Final Rule on the Application of the Fair Labor Standards Act to Domestic Service, recently validated by the D.C. Court of Appeals, but not yet effective and in force. Although the Final Rule recognized the difference between 24-hour shift workers who live in a client’s home (which it terms “live-ins”) and 24-hour shift workers who do not, it did not limit the deduction of sleep time or duty free time to live-ins alone.  If the Manhattan and Brooklyn Supreme Court justices’ interpretation of New York law stands, it will supersede the federal rule on this issue.

The Bottom Line. Unless and until an appellate court in New York rules differently, home care agencies who employ “sleep-in” workers are exposed to potential current and past liability for 24-hour shift sleep-in cases when the worker is paid for fewer than 24 hours’ pay.

If you have any questions regarding this Alert or would like our advice regarding your home care agency’s particular facts and circumstances, please contact the author, Stephen Zweig, Partner in FordHarrison’s New York City office, who has counseled and defended home care agencies for over 35 years, at szweig@fordharrison.com or (212) 453-5900, or the FordHarrison attorney with whom you usually work.

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