On Friday, October 6, 2017 the New York State Department of Labor (NYDOL) used its “emergency” regulatory power to amend its Minimum Wage Order for Miscellaneous Industries and Occupations, relating to home care workers assigned to so-called 24-hour “Live-in” shifts. A corresponding amendment was made to Part 143, the regulations applicable to nonprofit institutions which certify it will pay the statutory minimum wage. The regulatory amendments were issued under the “emergency” powers described in the State Amin. Procedure Act, §202(6). In essence, the amendments confirm that home care workers assigned to 24-hour live-in shifts, without regard to residence, need not be paid for up to 8 hours of bona fide sleep time and 3 hours of bona fide meal times, and thus may properly be paid for 13 hours of work in the 24-hour shift. As before, interrupted breaks require payment beyond the thirteen hour minimum.

The regulatory amendments were issued by the NYDOL in response to an outcry by the Home Care industry, following decisions in three cases by the Appellate Divisions for the First and Second Departments holding, in the context of class-certification motions in class wage-hour suits, that home care workers (other than “residential” employees who actually reside in the patient’s home) are entitled to 24 hours pay during any 24-hour “live-in” shift, irrespective of sleep or meal time. The amended regulation, as written, confirms the NYDOL’s long-standing policy (set forth most recently in a March 11, 2010 Opinion Letter) that only 13-hours pay is required in the normal 24-hour live-in case, if appropriate sleep and meal break times are provided.

The amendment appears to bring State law in line with Federal regulations cited above, to provide that employees who are completely relieved of their duties during sleep or meal times need not be paid during those periods.

These developments along with industry pursuit of an appeal to the New York Court of Appeals will be the subject of a more extensive informational memorandum in the upcoming weeks by Bond. In this regard, DOH will formally publish the new regulation in the State Register on October 25, 2017, which is anticipated to include an explanation of the NYDOL’s rationale and a SAPA required regulatory impact statement. Please look for an update here, shortly after October 25, 2017.