24-Hour Home Care Workers Must Be Paid For All 24 Hours (Appellate Division, First Department, New York Supreme Court)

Executive Summary. Tuesday, April 11, 2017, the First Department, Appellate Division of the NYS Supreme Court held that 24-hour case home care workers must be paid for all 24 hours if they are “nonresidential,” that is, they do not exclusively reside in the patient’s home. Tokhtaman v. Human Care, LLC (2017 NY Slip Op 02759). This is the first time an appellate-level court in New York has ruled this way. The First Department covers New York (i.e., Manhattan) and Bronx counties. A case dealing with the same issue, Andryeyeva v. New York Health Care, Inc. (Index No. 14309/2011 (Queens Cty.)) is currently on appeal in the Second Department, Appellate Division. The Second Department covers the counties of Richmond, Kings, Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam. Oral argument in that case was held in January of this year. Whatever the outcome, the NY Court of Appeals may ultimately be asked to rule on this issue.

24-Hour Cases. In its decision, the First Department declined to follow the NYS Department of Labor’s (“DOL’s”) guidance that 24-hour case home care workers, whether residential or non-residential, could lawfully be paid for only 13 hours if they were afforded sufficient sleep and meal breaks. This guidance, the court decided, contradicted the DOL’s own regulations, which refer only to “residential” employees, because it failed to distinguish between “residential” and “non-residential” employees. In making its decision, the First Department arguably departed from the norms of administrative law, under which courts usually give deference to the administrative agency’s interpretation of its own regulations.

This decision, if upheld on appeal to the NY Court of Appeals, could upend the use of 24-hour home care cases in New York and result in substantial backpay liability. No home care worker employed by an agency qualifies as a “residential” employee under New York law as currently interpreted. That means agencies potentially could owe workers an extra 11 hours in wages, plus overtime and spread of hours pay for each 24-hour shift in the past 6 years.

Wage Parity Act. In addition, the First Department also refused to dismiss the home care workers’ breach of contract claims under the Wage Parity Act (“WPA”). These claims, which allege the employees were not properly compensated under the WPA, were brought by the workers as “third-party beneficiaries” of their employer’s contracts with New York State (or its subdivisions) to provide home care services to Medicaid-eligible clients. This is also very significant because it places the issue of WPA compliance in the courts, and in the hands of private litigants, as well as with the NYS Department of Labor.

In sum, the First Department’s decision is a setback for home care agencies in New York.  Much will be riding on the upcoming decision of the Second Department in the Andryeyeva case and subsequent appeals to the New York State Court of Appeals.

FordHarrison LLP advises and counsels home care agencies and Fiscal Intermediaries under the New York State CDPAP on all labor, employment and benefit issues. If you have any questions regarding this Legal Alert or would like our advice about particular facts and circumstances at your agency, please contact the authors, Stephen Zweig at szweig@fordharrison.com or Philip Davidoff at pdavidoff@fordharrison.com, or contact any of the attorneys of the firm’s Homecare Industry Law Group in its New York City office at (212) 453-5900.

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