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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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Participating in New York’s CDPAP Is Necessary to Maintain Your Caseload

Why Has CDPAP Become So Popular? 

Publicity. Radio, newspaper, and subway ads are driving Medicaid home care clients and home care workers to abandon traditional home care agency programs for the greater flexibility and freedom of choice of New York’s Consumer Directed Personal Assistance Program (“CDPAP”). Managed care companies are also on board, offering this as an alternative to traditional home care. The benefits to all are many and the restrictions are few, unlike traditional home care.

Contracts. Managed care companies contract with a “Fiscal Intermediary,” a business entity created solely to provide payroll and benefit administration services under the CDPAP. The Fiscal Intermediary, in turn, contracts with Medicaid recipients, known as “Consumers,” referred by the managed care company. Continue reading “Participating in New York’s CDPAP Is Necessary to Maintain Your Caseload” →

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Part 4- How Do You Construct WPA Creditable Benefits?

Executive Summary.  Home care agencies in New York are experimenting with different packages of additional wages and benefits to meet the State’s Wage Parity Act requirements. This Act requires a minimum wage rate of $10.00 per hour and additional wages or benefits – a $4.09 per hour package in NYC and a $3.22 package in Nassau, Suffolk and Westchester counties (the “WPA Package”).  Some agencies spend nearly all of the amount above the $10.00 base wage on additional wages, absorbing the additional employment taxes, which are not creditable against the WPA Package.  Other agencies combine additional wages with minimum value and minimum essential health plan coverage in order to avoid penalties under the Affordable Care Act. Still others expand into more items, going beyond additional wages and health plans to create benefit programs that provide everything from transportation benefits to cell phone plan reimbursements. Their goal is to deliver all these benefits tax-free to workers, so receiving the benefits is better than additional wages alone, which subject a worker to income and FICA tax. When this is done properly, it is a “win-win” for the agency and the worker. The agency takes a business tax deduction for the total benefits’ actual cost, the worker receives the benefits without cost and tax-free, and the entire amount is creditable against WPA total compensation. But this can be difficult to achieve. It means complying not only with the WPA, but also with the Internal Revenue Code, ERISA, the Affordable Care Act, and wage and hour laws, including the NYS Domestic Workers’ Bill of Rights. When a benefit is not screened through each of these statutes, agencies are exposed to government audits, penalties, and lawsuits, as well as the soon-to-be announced protocols for validating WPA certifications. Continue reading “Part 4- How Do You Construct WPA Creditable Benefits?” →

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FLSA Conditional Certification Denied in NYS for 5,000 Home Care Workers

Executive Summary. In a case with far reaching implications, Cowell v. Utopia Home Care, Inc., 2:14-cv-00736-LDW-SIL, Magistrate Judge Steven Locke of the Eastern District of New York (covering Brooklyn, Queens and Long island) ruled that claims of failure to pay home care workers for hours worked and overtime are not suitable for a collective action where the workers’ conditions of employment vary so much between different home care workers and even for the same worker when working for different patients. This could prove to be a very important decision for the home care industry in New York, which has been battered by collective and class action complaints by a very active plaintiff attorneys bar. Every home care agency in New York is a potential target because home care workers can recover double damages and their attorneys’ fees if they prevail.

The Judge’s Findings of Fact. The plaintiff’s attorneys sought conditional collective action status for unpaid overtime for up to 5,000 home health aides (HHA) and personal care attendants (PCA) employed over a three year period across six states. In this case, the Court considered federal law as it existed prior to the effective date of the U.S. DOL’s Application of the FLSA to Domestic Service: Final Rule. The plaintiff’s attorneys were asking the Court to order that the names and addresses of all HHAs and PCAs be turned over so these workers could be notified of the case and given an opportunity to join it. Though Magistrate Judge Locke noted that at the conditional certification stage, plaintiffs “need only make a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law,” he found the plaintiff in this case had failed to meet even this low burden. To the contrary, the court found that “the unique and individualized Plans of Care that are prepared for Utopia’s patients and which Utopia HHAs are required to follow result in very fact-specific inquiries that are not susceptible to a similarly-situated person analysis that would support the issuance of a collective action notice.”

Lessons Learned. For a home care agency with hundreds of home care workers a collective or class action can quickly become a “bet-the-company” case. Based on Magistrate Judge Locke’s decision, if the right policies, procedures, and practices are in place at an agency and “nothing more than substantial allegations are made that the putative class members were together the victims of a single decision, policy or plan,” (emphasis added) a conditional certification can be defeated. Our office represented Utopia Home Care in this case. To strengthen your defenses against collective and class actions, take each of the following actions:

  1. Develop written work policies, procedures and practices that will require a fact-intensive analysis for each home care worker of factors that will differ from worker to worker depending on the patient’s needs and condition.
  2. Pay home care workers in accordance with the FLSA’s overtime and hours worked rules (e.g., paying properly for intra-day travel time, engaged to wait time, on-call time, and training time).
  3. Comply with the NYS Domestic Workers Bill of Rights (e.g., 1-1/2 times pay for hours worked on a seventh work day in a workweek, 3 paid days’ “rest” and, in NYC, 2 paid days’ sick leave for qualified workers, and no exemption from weekly overtime even if the worker is classifiable as an exempt “companion” under federal law); and pay an additional hour for “spread-of-hours” or split shifts under NY Labor Law.
  4. Comply with the NYS Wage Parity Act, including its “annualization principle” for benefit costs where benefits are provided both to workers who worked Medicaid reimbursable hours and those who do not or where non-Medicaid reimbursable hours are considered in determining eligibility for benefits.

If you have any questions regarding this Alert, please contact the authors, Stephen Zweig, the Managing Partner of FordHarrison’s New York office, at szweig@fordharrison.com, or Philip Davidoff, a partner with this office, at pdavidoff@fordharrison.com, or any member of the FordHarrison Home Care Industry Group.

Continue reading “FLSA Conditional Certification Denied in NYS for 5,000 Home Care Workers” →

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Individuals, Families, and Households and those who Jointly Employ Home Care Workers with them are all Liable for Unpaid Overtime

Executive Summary: Claims by home care workers for unpaid overtime have risen steadily since the U.S. Department of Labor, in 2015, eliminated the federal overtime exemptions that allowed agency employers essentially to pay no overtime wage premiums. This has greatly affected agency employers In New York, who are increasingly seeing class action suits being filed against them. It has also affected individuals, families and households in New York who hire home care workers directly, especially when the home care worker is an agency-employer worker who is continued for extra hours in a workweek. Since 2010, the New York Domestic Workers Bill of Rights has required “direct-hire” employers of home care workers to pay overtime at time and one half the worker’s regular rate. When an agency worker is continued for extra hours by an individual, family or household, both can be held liable for unpaid overtime on all hours worked over 40 in a workweek, regardless of who scheduled the hours. Beyond the agency and individual, family, or household, others who have the power, whether or not exercised, to hire, employ, or pay the worker, such as a child or relative who takes care of a client’s affairs or an attorney acting under a power of attorney or as a legal guardian, conservator, or trustee, are also at risk of being held liable. Continue reading “Individuals, Families, and Households and those who Jointly Employ Home Care Workers with them are all Liable for Unpaid Overtime” →

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NYSBA Elder Law and Special Needs Section Summer Meeting

When
July 22, 2016
8:45 AM – 10:25 AM

Where
The Logan Hotel
1 Logan Square
Philadelphia, PA 19103
215-963-1500

About the Program
FordHarrison Partner Stephen E. Zweig, will be a panelist on “Hidden Traps and Pitfalls in Employing a Home Care Worker: Advising Your Client on Doing It the Right Way,” during he NYSBA Elder Law and Special Needs Section Summer Meeting on July 22.

The program will cover: A review of the current status of Federal, NYS, and NYC employment laws, including a review of Internal Revenue Code, Fair Labor Standards Act, NYS Domestic Workers Bill of Rights and NYC Earned Sick Time Act. Managing the risks with knowledge and know-how; constructing employment contracts that protect you; penalties and lawsuits when you skip, skimp, and get stuck.

Please click here for a schedule of events for July 22: NYSBA – Elder Law and Special Needs Section Summer Meeting (July 21-23 2016)

For more information and to register, click here: http://www.nysba.org/store/events/registration.aspx?event=ELDSU16

 

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Home Care Professionals Series: Part 3 – What Health Benefits Are Creditable under the WPA?

Executive Summary. Health benefits come in many different forms, each of which can be a creditable expense under the Wage Parity Act (“Act” or “WPA”). Some forms require detailed plans and government filing each year, and must be funded with premiums paid for on a regular basis by a home care agency. Others cap the amount an agency may contribute and only pay or reimburse health expenses as they occur. Each form of health benefit has its own characteristics, advantages and disadvantages, and tax consequences, both to the agency and the worker. Beyond the WPA, to be exempt from penalties under the Affordable Care Act (“ACA”), the health benefit provided must also (i) constitute “minimum essential coverage” under the ACA; (ii) be “affordable” as defined in the ACA; and (iii) provide “minimum value” coverage (meaning that it covers at least 60% of expenses, determined on an actuarial basis).

Please click here for the full article: Home Care Professionals Series – Part 3

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Home Care Professionals Series: Part 2 – What Are Creditable Benefits under the WPA?

Executive Summary.  Under the New York Wage Parity Act (“Act” or “WPA”), the term “supplemental wages” covers a wide range of benefits. Generally speaking, any non-wage remuneration that primarily benefits the employee rather than the home care agency may be considered. However, this standard is less than clear and in any event, deciding which benefits to provide workers depends on several factors. For example, some benefits are tax-advantaged both to the agency and the worker; other benefits are not. Some benefits require formal plans under the Internal Revenue Code; other benefits do not. They can be set up as payroll practices without a formal plan. And, some benefits will provide dollar-for-dollar credit against the Act’s $4.09(NYC)/$3.22(LI, Westchester) additional and supplemental wage package (the “WPA Package”); other benefits will not. These other benefits must be calculated using an “annualization method” from prevailing wage law, which reduces the creditable amount for WPA purposes.

Please click here for the full article: Home Care Professionals Series – Part 2

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Union Agreement to Arbitrate “Sleep-In” Wage and Hour Claims Applies Even Though Agreement Was Signed After Lawsuit Began

Executive Summary: In Lai Chan et al. v. Chinese-American Planning Council Home Attendant Program, Inc., decided February 3, 2016, the Southern District of New York (covering New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan counties) deferred to arbitration the unpaid wage and overtime claims of Sleep-in workers covered by a union agreement, even though the agreement to arbitrate was signed after the lawsuit alleging these claims against the home care agency was commenced. An earlier decision in this same case from the New York County Supreme Court had denied the agency’s motion to dismiss the complaint, and volunteered that under New York Labor Law, Sleep-in workers must receive wages for 24 hours of work. This question will now be decided in arbitration, not in a court action.

What Reason Did the Federal Court Give?

The question presented was whether unpaid wage and overtime claims of Sleep-in workers should be deferred to arbitration under a union collective bargaining agreement even though the agreement with the arbitration provision was signed after the claims were brought in court.

The plaintiffs claimed that the agreement to arbitrate, which was embodied in a 2015 Memorandum of Agreement between the agency and 1199 SEIU, could not apply retroactively to their claims. The court rejected this argument, stating that under controlling case law, unless the parties said otherwise in the agreement to arbitrate, “an arbitration provision may cover claims that accrued prior to the execution of the agreement to arbitrate.” Moreover, the court added that any question on the scope of the arbitrable issues was for the arbitrator to decide, not the court. Were it not for this court’s decision, the agency would have had to defend the workers’ claims as a class action in court.

Points to Consider:

  1. To have a court defer wage and hour (or other) claims, whether brought singly or as a class, to arbitration, you must have your home care workers sign bona fide arbitration agreements. These agreements should be written in a manner to be understood by home care workers, provide sufficient protection to allow workers to bring their claims in arbitration, and be entered into voluntarily by workers with safeguards against any claim of fraud or duress.
  2. Implementation of arbitration agreements in non-union settings and procedures to obtain worker signatures must be consistent, uniform, and designed to obtain informed consent, whether the agreement is requested from a new employee as a condition to hire or a current employee as a condition of continued employment.

 

What Questions Does This Decision Raise?

  1. How do you construct an enforceable arbitration agreement that meets all legal requirements?
  2.  What is the “best practice” to be used in asking home care workers to sign arbitration agreements?
  3.  Where an employer knows a class action lawsuit was filed against it, must it advise all workers, including new hires who are asked to sign arbitration agreements, of the lawsuit?
  4.  Will individual arbitration agreements with non-union workers, if implemented properly, apply retroactively to class actions the same as union agreements to arbitrate?
  5.  How would an agreement to arbitrate with a union affect an agency’s former workers from bringing an action in court, either as a class or singly?
  6.  What time limits for bringing wage and hour claims will apply to claims brought in arbitration?

FordHarrison’s Home Care Law Group is composed of partners and associates who are immersed in the home care industry and dedicated to solving its problems. The Group can provide you with an arbitration agreement and written implementation procedures. If you have any questions about this Legal Alert, please call the Group Head, Stephen Zweig, at 212-453-5906 or email him at szweig@fordharrison.com.

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Home Care Professionals Series: Part 1 – NYS Domestic Worker’s Bill of Rights

Executive Summary. As most home care agencies know, the United States Department of Labor (“USDOL”) eliminated the companionship exemption for home care agency workers on October 13, 2015 in its Final Rule on the Application of the FLSA to Domestic Service Workers (“Final Rule”). What they may not have considered, however, is that following the Final Rule, the NYS Domestic Workers Bill of Rights, which originally only applied to home care workers directly employed by individual households, now also applies to agency employed home care workers. For NYC agencies, in particular, coming into compliance with Domestic Workers Bill of Rights requires changes to the benefits they provide to their home care workers.

Paid Leave Requirements

Until October 13, 2015, when the USDOL’s Final Rule went into effect, NYC home care agencies’ paid leave policies were only required to comply with the paid sick day requirements under Earned Sick Time Act (ESTA) (effective April 1, 2014, except for unionized agencies, which were exempted until their collective bargaining agreements expired). Now, NYC home care agencies have to comply with both ESTA and the NYS Domestic Workers Bill of Rights (“DWBR”).

DWBR requires that home care workers of eligible home care agencies be given 3 paid “days of rest” if they have been employed with the agency for at least one year and averaged 30 or more hours of work per week. Part-time workers receive fewer days, depending on their average hours worked.

ESTA separately requires that home care workers of eligible home care agencies be provided up to 40 hours of paid sick leave annually. Fortunately, ESTA has special provisions for workers covered by DWBR that effectively allow agencies to credit the paid time given under DWBR toward ESTA’s 40 hour requirement: under ESTA, home care agencies are only required to provide 2 days of sick leave to full-time home care workers (and, consistent with DWBR provisions, less time for part-time workers).

In sum, a NYC home care agency must offer its home care workers at least 5 days of paid time off (3 days of rest under DWBR and 2 sick days under ESTA) if they (i) are employed for at least one year; (ii) worked 30 or more hours per week, on average, during the previous year; and (iii) work more than 80 hours per calendar year in NYC.

Accrual and Use Requirements of Paid Leave

DWBR, unfortunately, is silent on accrual and use limitations home care agencies may impose. The New York State Department of Labor (“NYSDOL”) has issued FAQs advising agencies that paid days of rest are due to the worker at the beginning of the calendar year. For home care workers who have not yet been employed for a full year by the first day of the calendar year, the agency must transition the employee’s benefits by providing a pro rata share of days of rest on the one-year anniversary of employment and then providing the full allotment on the first day of the next calendar year. According to these FAQs, agencies cannot require that workers use days of rest in periods of less than one day, and any unused earned days of rest must be paid at the end of each year and at separation of employment. The NYSDOL FAQs also indicate that a “day” is to be paid at the worker’s regular rate of pay for the average number of hours in his or her normal workday.

ESTA, apparently trying to harmonize its requirements with those of DWBR, requires that additional sick time under ESTA be “calculated” in the same manner as days of rest under DWBR, but does not answer whether many of its other nuanced requirements will give way to the provisions under DWBR.

Weekly Day of Rest

DWBR also entitles home care workers to a 24-hour (consecutive) period “of rest” each week, which it recommends be coordinated with the worker’s traditional day for religious observance. If the home care worker waives this entitlement and accepts work on that day, he or she must be paid at the worker’s overtime rate for all hours worked on this day, whether or not the worker’s total hours for the week exceed 40.

 What questions does the new application of DWBR raise for NYC home care agencies?

  1. How many hours constitutes a “day” if your home care workers work shifts of varying lengths, including 24-hour shifts?
  2. Do home care agencies have to allow their workers to take sick time in 4-hour increments, when that is not required by DWBR?
  3. May a home care agency implement different notice or scheduling requirements for the use of days of rest under DWBR and sick days under ESTA?
  4. If a home care agency’s collective bargaining agreement has not yet expired, and therefore ESTA does not apply, how should the agency plan to implement current DWBR and future ESTA requirements?
  5. If a home care agency had not yet provided any paid days of rest or sick days to its home care workers for 2015, how much time is the agency required to provide retroactively to its workers for 2015?
  6. May a home care agency choose to rollover workers’ sick days rather than pay out at the end of the year, as allowed under ESTA, but not allowed for days of rest under the DWBR?
  7. If a home care agency is providing extra paid time off in addition to DWBR time, what are “best practices” and how should they be written in a paid time off provision in an employee handbook?

The Bottom Line

ESTA and DWBR combine to create a statutory minimum for paid time off available to home care workers. However, the interplay between the two laws is not yet well-defined and agencies should be careful to implement a paid time off policy that complies with the different requirements of both laws.

FordHarrison advises and counsels home care agencies 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 home care agency, please contact the authors, Stephen Zweig, Roshni Chaudhari, or Andrea Orr (paralegal), members of the firm’s Home Care Industry Group in its New York City office at szweig@fordharrison.com, rchaudhari@fordharrison.com, aorr@fordharrison.com, or (212) 453-5900, or the FordHarrison attorney with whom you usually work.