The 2nd Department Rejects NYSDOL’s “13 Hours Rule” For 24-Hour Shift Workers

Executive Summary. Yesterday, in two long-awaited decisions, the New York State Appellate Division, Second Department ruled that home care workers who worked 24-hour shifts, commonly referred to as “live-in” shifts, were required to be paid for all 24 hours, regardless of the sleep and meal times they were afforded. The two cases are Andryeyeva v. New York Home Attendant Agency and Moreno v. Future Care Health Services, Inc.

Rationale. Both of yesterday’s decisions followed the reasoning of Tokhtaman v. Human Care, LLC, decided by the Appellate Division, First Department earlier this year, rejecting the New York State Department of Labor’s (“NYSDOL”) longstanding opinion that workers could be paid for 13 hours per shift, provided they were afforded at least eight hours for sleep time and three hours for meals (the “13-Hour Rule”). The Second Department determined that the NYSDOL’s 13-Hour Rule was an interpretation that was “neither rational nor reasonable” under New York’s minimum wage law and regulations.

Appeal. The Andreyeyeva, Moreno, and Tokhtaman decisions were all unanimous, so there is no automatic right to appeal to the New York Court of Appeals, New York State’s highest court. However, these three decisions stand in stark contrast to decisions in federal courts in New York in which those courts have deferred to the NYSDOL’s 13-hour Rule, namely Severin v. Project OHR and Bonn-Wittingham v. Project OHR. Indeed, in Bonn-Wittingham, the Court considered and expressly rejected the First Department’s reasoning in Tokhtaman. This split between the state courts and federal courts could provide an avenue for review of this issue by the New York State Court of Appeals.

In the meantime, these three decisions present significant challenges for agencies. Without a different decision or government action, agencies may face enormous backpay liability for all their 24-hour cases worked over the past six years.

What questions do these decisions raise?

  1. Who is directly affected by these decisions? Are fiscal intermediaries for CDPAP as well as LHCSAs affected? Are non-profit agencies as well as for-profit agencies affected?
  2. Who has ultimate liability for having to pay 24 hours pay for 24 hour shifts for the past six years? Are owners of corporations and LLCs personally liable for unpaid wages and taxes? How can owners protect their personal assets?
  3. What legal options exist? If the Second Department refuses, as the First Department did, to allow an appeal, what alternative way exists to bring this issue before the New York Court of Appeals?
  4. What do you do with 24-hour shift cases you are currently servicing?

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

Compensating Aides for 24-Hour Cases: The Latest

On August 15, 2017, the Appellate Division, First Department, which had earlier held that 24-hour “sleep-in” aides must be paid for all 24 hours, denied a motion to reargue or further appeal its decision to the New York Court of Appeals, New York’s highest court. Though significant, it is unlikely that this will be the last word on this issue.

Recent History. For several years, federal and state courts in New York have grappled with the issue of compensating home health aides for 24-hour “live-in” or “sleep-in” shifts under New York Labor Law.

Beginning in 2012 with Severin v. Project OHR, and continuing as recently as May 2017 with the Bonn-Wittingham v. Project OHR case, United States District Courts in New York have said that 24-hour shift workers who are afforded eight hours of sleep time (at least five hours of which are uninterrupted) and three hours for meals may be paid for 13 work hours. The New York Department of Labor has long maintained that this approach is consistent with the New York Labor Law.

In contrast, beginning in 2014 with Andryeyeva v. New York Health Care, Inc., and as recently as 2017 with Tokhtaman v. Human Care, LLC, state courts have rejected the NYDOL’s opinion and the deference provided to that opinion by the federal courts, holding that aides working 24-hour shifts must be paid for 24 hours. One notable exception in New York State courts is Moreno v. Future Care Health Servs., Inc., in which the Kings County Supreme Court found similarly to the federal courts.

As these cases have made their way through the courts, the split between the federal and state courts has deepened. So where do the cases presently stand?

NYS Courts. In April 2017, in the first appellate-level decision to address the issue, the Appellate Division, First Department, covering Manhattan and the Bronx, upheld a lower court’s decision in Tokhtaman v. Human Care, LLC, requiring aides to be paid for 24 hours. On August 15, 2017, the Appellate Division, First Department denied the agency’s motion to reargue and also refused to permit it to appeal to the New York Court of Appeals.

Tokhtaman was decided was decided by the Appellate Division, First Department less than one year after its initial filing in the lower court. Contrast this with the Andryeyeva case. The complaint in Andryeyeva was filed nearly seven years ago. The supreme court’s decision concluding that sleep-in aides were entitled to 24 hours’ pay for 24-hour shifts was issued in September 2014 and was promptly appealed. The appeal has since then been pending before the Appellate Division, Second Department, covering Kings, Queens, Richmond, Westchester, Nassau and Suffolk counties. Oral argument in the Andryeyeva appeal and the Moreno appeal was held in tandem in January 2017. To date, no decisions have been reached.

Federal Courts. While the Andryeveva appeal has been pending in state court, another federal court has waded into the controversy. In December 2016, the United States District Court for the Eastern District of New York in Bonn-Wittingham v. Project OHR agreed with the analysis of the Severin court and deferred to the NYDOL’s opinion regarding payment of 13 hours to 24-hour shift aides. In May 2017, Plaintiffs brought to the Court’s attention the Appellate Division, First Department’s decision in Tokhtaman, arguing that it represented a change in the controlling law on the issue and that the Court’s earlier decision applying the NYDOL’s 13–hour Rule should be revisited.

The Court promptly, and quite pointedly, rejected Plaintiffs’ position. The Court noted that the Appellate Division, First Department is a “state intermediate court” whose decisions are not “controlling.” Furthermore, the Court said that the New York Court of Appeals “is not likely to follow Tokhtaman” because the NYDOL’s interpretation of NYLL is “entitled to deference” by the Courts, particularly where, as here, the NYDOL’s interpretation does not conflict with the law and is otherwise reasonable. Notably, the Court cited the Moreno decision in support of its rejection of Tokhtaman.

Conclusion. The Appellate Division. First Department’s Tokhtaman decisions have decided for now the issue of pay for 24-hour shift home care workers who work within its jurisdiction (i.e., Manhattan and the Bronx). By refusing to allow an appeal of its decision to the New York Court of Appeals, the Appellate Division, First Department has heightened concern and interest in the pending Andryeyeva appeal in the Appellate Division, Second Department. If the Appellate Division, Second Department holds differently in Andryeyeva, aligning with the federal courts, it would have a significant impact and almost certainly set the stage for the issue to be decided by the New York State Court of Appeals.

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.

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

 

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

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

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.

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. 

United States Supreme Court Denies Stay of Appeals Court Ruling Validating USDOL’s Final Rule

New York City Passes Ban-the-Box Legislation Affecting Private Employers

Executive Summary: On June 10, 2015, the New York City Council passed the NYC Fair Chance Act (the Act) in a landslide vote. Sponsored by New York City Council Member Jumaane Williams (D-Brooklyn), the Act amends the New York City Human Rights Law (NYCHRL) to prohibit private employers in New York City with four or more employees from inquiring into or otherwise considering an applicant’s criminal background history prior to extending a conditional offer of employment to the applicant. In 2011, Mayor Michael Bloomberg signed a law that prohibits New York City government employers from asking applicants during the initial application process whether they have been convicted of a crime. The Act now extends that law to private employers with at least four employees and “bans the box” that is commonly found on job applications by which employers inquire into applicants’ criminal histories.

Under the Act, employers may only inquire into an applicant’s criminal history after extending a conditional offer of employment. The Act defines “inquiry” as “any question communicated to an applicant in writing or otherwise, or any searches of publicly available records or consumer reports that are conducted for the purpose of obtaining an applicant’s criminal background information.” The Act also prohibits private employers from distributing any advertisement that expresses any limitation or specification in employment based on an individual’s arrest or criminal conviction. Employers who inquire into an applicant’s criminal history after making a conditional offer of employment must comply with the following requirements before taking any adverse employment action based on such inquiry:

  • provide the applicant with a written copy of the inquiry;
  • perform an analysis that is required by Article 23(a) of the New York Corrections Law;
  • provide the applicant with a copy of such analysis; and
  • provide the applicant with three business days to respond to the written analysis, during which time the employer must hold open the employment position for that applicant.

Importantly, the Act does not apply to any actions taken by employers pursuant to any federal, state or local law that requires criminal background checks for employment purposes or bars employment based on criminal history. Moreover, the Act exempts from coverage police officers, peace officers and certain positions within the Department of Citywide Administrative Services. Violations of the Act will be enforceable against private employers by the New York City Commission on Human Rights through an administrative procedure or a private right of action, and will be enforceable against public agencies by a proceeding brought pursuant to Article 78 of the New York Civil Practice Law and Rules (CPLR).

The Act will become effective 120 days after it is signed by Mayor Bill de Blasio, which is expected to take place shortly due to his support for the Act. Thereafter, New York City will join 17 states and more than 100 cities that have already adopted “ban-the-box” laws. However, only certain states and cities such as Hawaii, Massachusetts, Minnesota, New Jersey, Rhode Island, the District of Columbia, San Francisco and Chicago have enacted laws affecting inquiries by private employers regarding job applicants’ criminal background histories.

Employers’ Bottom Line: New York City employers are subject to an ever-increasing number of regulations with respect to their hiring practices. Notably, the NYC Fair Chance Act was passed just weeks after the passage of legislation that bars certain New York City employers from requesting or using current or prospective employees’ consumer credit histories for employment purposes. New York City employers should review the Act’s requirements and revise their employment applications and criminal background check policies accordingly to ensure compliance with the Act.

If you have any questions regarding this Act, other ban-the-box laws, or hiring practices in general, please feel free to contact the authors of this Alert, Philip Davidoff, pdavidoff@fordharrison.com, a partner in our New York City office, or Saima Zuberi, szuberi@fordharrison.com, an associate in our New York City office. You may also contact the FordHarrison attorney with whom you usually work.