NY Court of Appeals Upholds 13 Hours Pay for 24-Hour Shift Home Health Aides

Executive Summary. Today the New York Court of Appeals issued its long-awaited decision on 24-hour shift home health aides who work as “sleep-in” workers. The Court reversed two Appellate Division decisions, Andryeyeva v. New York Health Care, Inc., (“Andryeyveva”) and Moreno et al., v. Future Care Health Services, Inc., (“Moreno”) and ruled that home health aides were not automatically entitled to wages for each hour of the 24-hour shift. The Court deferred to the State Department of Labor’s (“DOL”) interpretation of its own regulation, that non-residential (“sleep-in”) home health aides may be entitled to 13 hours of wages, provided that they receive a sleep break of at least eight hours (receiving five hours uninterrupted sleep) and three hours of meal breaks. At the same time, the Court warned home care agencies that “failure to provide a home health aide with the minimum sleep and meal times required under the DOL’s interpretation of the Wage Order is a ‘hair trigger’ that immediately makes the employer liable for paying every hour of the 24-hour shift, not just the actual hours worked.” For the home care industry in New York State, this decision has enormous ramifications, which we discuss below.

How Did the Court Reach This Decision?

The Court reached its decision by relying on the doctrine of “judicial deference” to “an administrative agency’s rational interpretation of its own regulation in its area of expertise.” The Court said the DOL “interpreted its Wage Order to require payment for at least 13 hours of a 24-hour shift if the employee is allowed a sleep break of at least 8 hours—and actually receives five hours of uninterrupted sleep—and three hours of meal break time.” This, said the Court, “does not conflict with the promulgated language [of the Wage Order], nor has the DOL adopted an irrational or unreasonable construction.”

Rejecting the Appellate Division’s contention in Andryeyeva that “the DOL’s interpretation is neither rational nor reasonable, because it conflicts with the plain language of the Wage Order,” the Court said that being physically present and able to work does not mean the home health aide is “available for work,” and the DOL’s interpretation was not inconsistent with the plain language.

Importantly, with regard to the ultimate merits of the claims alleged in Andrveveya and Moreno, and the class certifications motions in each case, the Court expressed no opinion, referring each case back to its lower court for further proceedings consistent with its opinion.

What Are the Ramifications of This Decision?

  1. Dozens of “24-hour” cases pending in federal and state court are affected by this decision and lower courts will decide whether their cases warrant class action treatment or the claims of individual home health aides must be heard one-by-one. Where arbitration demands have been filed under collective bargaining agreements by unions representing home health aides, the arbitrators will have to decide many of the same issues.
  2. Other federal and New York wage and hour law issues, such as pay for “spread of hours,” intraday travel time, training time, unauthorized but suffered hours worked, overtime, joint employment, and, most importantly, compliance with the intricacies of New York’s unique wage and hour statutes, such as the Wage Parity Act, Domestic Workers Bill of Rights, Wage Theft Prevention Act, and New York City’s Earned Sick Time Law, are likely to gain prominence. Notably, the First Department in Tokhtaman v. Human Care, LLC, a similar 24-hour case not directly decided by the Court of Appeals, refused to dismiss the home care workers’ breach of contract claims under the Wage Parity Act.
  3. Home care agencies and those who broker deals to sell and buy agencies may feel relieved that the threat of six years’ back liability when 24-hour shift workers were paid less than 24 hours for each assigned shift has been lessened, but the due diligence necessary before acquisition remains as important as ever. The Court specifically warns home care agencies that if a home health aide “worked 24-hour shifts without ‘meaningful breaks,’ … [they] would be entitled to compensation for the entire 24-hour period,” and “if an aide receives a modicum of sleep below the five-hour minimum and less than the three hours of meal breaks, the employee must be paid for the full 24 hours.” It can be expected, based on the allegations made in many cases that workers will claim they were not afforded the requisite sleep and meal breaks. Further, plaintiff attorneys may seek to file multiple individual cases making such allegations, in order to force agencies to defend multiple costly lawsuits at the same time, and thereby seek to force settlements.
  4. Home care agency policies and procedures for evaluating whether a 24-hour shift home health aide actually receives five hours uninterrupted sleep and three hours for meal periods will come under greater scrutiny, both from the DOL and plaintiffs’ attorneys. If these policies and procedures are not in place, are too loose to be effective, are inconsistent, or are not followed and complied with uniformly, an agency will be exposed to government audits and lawsuits. Home care agencies should immediately review their current policies to ensure they contain protective language.
  5. Unclear is the impact of the decision on a fiscal intermediary for a CDPAP and who is responsible to keep records about whether the personal assistant is actually afforded, and receiving, five hours of uninterrupted sleep and three hours of meal breaks.
  6. Also unclear is how this decision will affect Wage Parity Act and New York labor law audits being conducted by the State’s Attorney General, OMIG, States’ Departments of Health and Labor, and the federal government’s Internal Revenue Services and Department of Justice. Unless an agency learns what will be asked and how to prove your compliance under these audits, both the agency and its directors and officers, personally, are exposed to substantial liability for non-payment of wages. Proving that you are in compliance requires both preparation and legal guidance.

If you have any questions regarding this Legal Alert or would like our advice about particular facts and circumstances at your agency, please contact one of the authors, Stephen Zweig at szweig@fordharrison.com, Philip Davidoff at pdavidoff@fordharrison.com, or Eric Su at esu@fordharrison.com of the firm’s Homecare Industry Law Group in its New York City Office at (212) 453-5906.