A Bit of Background

Home health aides are often hired through a health care agency to work 24-hours shifts caring for elderly or infirm family members. But what about the law requiring employers to pay overtime where an employee works more than 40-hours in a workweek? The New York State Department of Labor's (DOL) "13-hour rule" has been standard in the home health care industry since at least March 2010, when the DOL issued an opinion letter on this issue. The DOL opined that home health aides working 24-hour "live-in" or "sleep-in" shifts need only be paid for 13 working hours as long as they receive three hours for meals and an eight-hour sleep period, five hours of which must be uninterrupted, during each shift.[1]

Employers took this to be a pretty solid rule until a pair of lawsuits were filed a few years ago that threw everything into question.[2] The crux of the matter in these cases became whether or not the DOL's 13-hour rule was a legitimate interpretation of the applicable New York law (actually known as a "Wage Order").

Lower courts rejected the DOL's 13-hour rule, saying that the DOL's opinion letter was in conflict with the Wage Order and that home health aides must be paid for all 24 hours of a 24-hour shift, even if they received meal breaks and the required sleep time. This created turmoil within the industry as the prospect of overtime would drive the cost of home health aides to cost-prohibitive levels. Although the DOL subsequently issued emergency regulations reinforcing the 13-hour rule, by law these regulations expired after 90-days. The lawsuits worked their way through the appellate court system, finally reaching New York's highest court.

So, to the point!

And finally, the waiting and the lack of sleep (the irony!) has come to an end. In its decision issued March 26, 2019, the New York State Court of Appeals affirmed the DOL's 13-hour rule. We can hear employers state-wide sighing with relief.

Contrary to the lower courts, the Court of Appeals concluded that the DOL's opinion letter is not irrational or unreasonable, does not conflict with the meaning of the Wage Order and therefore, its interpretation of the way in which an employee working a 24-hour shift must be paid stands. Furthermore, the Court of Appeals noted that the DOL is the expert of its own regulations, and as such it "is best positioned to accurately describe the intent and construction of its chosen language."

While this is a win for the home health care industry, employers can be sure to see an increase in allegations like those of the plaintiffs above. This is because the Court of Appeals highlights the very thin line that cannot be crossed, lest the aide must be paid for 24 hours. Specifically, "[i]f an aide receives a modicum [emphasis added] of sleep below the five-hour minimum and less than three hours of meal breaks, the employee must be paid for the full 24 hours." Therefore, employers relying on the 13-hour rule must be sure to have proper operating procedures and recordkeeping practices in place to ensure they are accurately tracking their aides' meals and sleep periods as a defense against future litigation and investigations.

Dodged a Bullet

We mean it when we say this was a make-or-break decision. To illustrate just how much was on the line, consider this: under the current 13-hour rule, a home health aide who works five 24-hour shifts must be paid for 5 x 13 hours = 65 working hours, which includes 25 overtime hours. If the aide had to be paid for all 24 hours, including non-working time, that weekly pay would cover 120 hours, including 80 hours of overtime. That's 320%(!) of the compensable overtime hours under the current rule. It would essentially drive the cost of doing business through the roof.

Stay Tuned...

Of note, the Court of Appeals did not answer some open questions, instead returning them to a lower court to address specific issues such as the applicability of "spread of hours" pay and determinations regarding what constitutes "interrupted versus uninterrupted" meal and sleep periods.

But at least for tonight, you can sleep soundly knowing the 13-hour rule is in place. Who knows, maybe you'll even get a full eight hours?

[1] While the March 2010 opinion letter is cited as the support for the 13-hour rule, it is not the DOL's first mention of their position on the matter. The New York State Court of Appeals also highlights this point in their March 26, 2019 decision, citing instances over the past 50 years in which the DOL has issued consistent interpretations.

[2] Andryeyeva v. New York Health Care, Inc. (2nd Dept. Sept. 13, 2017); Moreno v. Future Care Health Services, Inc. (2nd Dept. Sept. 13, 2017)