New York Appeals Court Upholds 13-Hour Rule

Via NAHC (March 28, 2019)—A New York Court of Appeals ruling will allow homecare providers in that state to continue to pay “sleep in” aides for 13 hours of a 24-hour shift, as long as the employees are given three hours for meal breaks and eight hours of sleep, at least five of which must be uninterrupted.

The Court of Appeals decision in Andryeyeva v. New York Health Care, Inc., and Moreno v. Future Health Care Services, Inc., reversed rulings at lower trial and appellate courts that rejected guidance from the New York state Department of Labor’s (DOL) Wage Order. These rulings instead insisted that homecare aides be paid for all 24 hours of a 24-hour shift.

However, the Court also cautioned homecare 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.”

The Court warned homecare 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.”

The Court of Appeals held that plaintiffs mistakenly argued that homecare aides employed by third-party agencies are not “residential” employees, meaning sleep and meal periods cannot be deducted from their pay.

By reversing the rejection of DOL guidance in the lower courts, the Court of Appeals relied on “judicial deference,” a judicial doctrine that, in this case, meant deferring to “an administrative agency’s rational interpretation of its own regulation in its area of expertise.” Allowing agencies to pay aides for 13 hours of a 24-hour shift, provided eight hours were set aside for sleep and another three for meal breaks, “does not conflict with the promulgated language [of the Wage Order], nor has the DOL adopted an irrational or unreasonable construction.”

In a March 11, 2010 opinion letter, the New York Department of Labor held that live-in employees, residential or not, as “subject to call” rather than “on call” and must be paid for only 13 of 24 hours, provided the eight total hours of sleep (at least five hours uninterrupted) and three hours of meal breaks requirements are met. The DOL also held that an aide who does not receive the five hours of uninterrupted sleep and three hours of meal breaks would have to be paid for the full 24 hours.

In light of these facts, the Court held that “[j]udicial deference to an agency’s interpretations of its rules and regulations is warranted because, having authored the promulgated text and exercised its legislatively delegated authority in interpreting it, the agency is best positioned to accurately describe the intent and construction of its chosen language.”

In addition, the court ruled that “the construction at issue here has been followed for a long period time and thus, is entitled to great weight and may not be ignored.”

The Court of Appeals remanded the class certifications motions and the merits of the claims alleged in the two cases were remanded down to the lower courts with no opinion.

A decision in favor of the homecare aides would have been economically troubling for homecare in New York, as liability for unpaid minimum wage and overtime over the last six years—the statute of limitations period—could have forced many agencies to close.

This ruling impacts only the state of New York.

While the ruling a significant victory for homecare, it is likely that agency policies ensuring aides receive five hours of uninterrupted sleep, eight total hours of sleep in 24 hours, and three hours for meals, will receive greater scrutiny from regulators and plaintiffs’ attorneys in the future, and having the right policies in place and following them rigorously will be necessary to avoid unwanted exposure to lawsuits and government auditors.

“The Court’s ruling is a welcome outcome in a controversy that should not have happened,” said William A. Dombi, President of the National Association for Home Care & Hospice (NAHC), in response to the ruling. “Homecare employers should be able to rely on guidance from the state Labor Department as had employers throughout New York. The ruling will help preserve access to crucial homecare services in the state.”

In a statement released after the ruling, Al Cardillo, President of the Home Care Association of New York, said the “ruling upholds the law as interpreted by the state Department of Labor, as applied by the state Department of Health, and as followed in good faith by providers who have been directed to comply with the 13-hour rule.”

“HCA continues to support a structure of regulations and reimbursement that ensures proper compensation and coverage of direct-care staff.”

“We also continue to fervently advocate for state, federal and commercial payer reimbursement to provide wages and benefits reflecting the vital nature and value of the care our homecare workers render every day.”

Find additional coverage on the ruling at littler.com and jdsupra.com.

Visit nahc.org for more information.