Employers of in-home health care aides in New York are allowed to compensate employees for only 13 hours of work in a 24-hour shift, given that aides are provided with adequate sleep and meal breaks. The New York Court of Appeals has upheld the New York Department of Labor’s (DOL) interpretation of the Miscellaneous Industries and Occupations Minimum Wage Order (Wage Order) that allows employers to pay live-in home health care aides for only 13 hours of a day-long shift, so long as the aides are given at least eight hours for sleep, five of which are uninterrupted, and three hours for meal breaks.
The Court of Appeals’ decision resolves a split among the federal and state courts on this issue that has led to a rash of class action lawsuits and uncertainty in the industry. Home health care agencies that take advantage of this decision, however, must remain vigilant in their record-keeping practices to reduce the risk of potential class action lawsuits.
In Andryeyeva v. New York Home Health Care, Inc, the Court of Appeals overruled two lower appellate courts that had certified classes of home health care aides based on their employers alleged common policy of only paying live-in home health care aides for thirteen hours of a twenty-four hour shift. The employers had relied upon a May 2010 DOL Opinion Letter which stated that live-in home health care aides needed to be paid not less than for thirteen hours, so long as the aides were given at least eight hours for sleep, five of which were uninterrupted, and three hours for meal breaks. The lower courts declined to follow the DOL’s Opinion Letter, finding that it conflicted with the plain language of the Wage Order’s requirement that employees be paid at least the minimum wage “for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer.” The lower courts held that the phrase “available for work” included nighttime hours spent at a client’s home even when the employee was “not called upon to perform services.”
The Court of Appeals reversed these decisions, finding that the DOL’s position that live-in home health care aides need to be paid only for 13 hours so long as they get eight hours of sleep, five of which are uninterrupted, and three hours for meal breaks was consistent with the Wage Order. The Court of Appeals found that the DOL’s interpretation was consistent with the Wage Order as the DOL could rationally determine that one is “not available to work” during periods of sleep and meal breaks.
The Court of Appeals made clear, however, that the DOL’s interpretation that allows for payment of only 13 hours of a 24-hour shift is a narrow one, and that any exception to the required meal or sleep times mandates payment to the employee for the full 24 hours of a shift. Indeed, the Court of Appeals stated that any failure to provide these break periods is a “‘hair trigger’ that immediately makes the employer liable for paying every hour of the 24-hour shift, not just the hours worked. Thus, even if a home health care aide sleeps without interruption for four hours and 59 minutes, but is not able to obtain five full hours of sleep, DOL mandates the employer pay for the entire eight hours allotted for sleep.”
Although the Court of Appeals reversed the lower courts’ certification of a class based on the lower court’s improper interpretation of the Wage Order, it remanded the cases and left open the possibility that a class could be maintained on other grounds. In particular, the Court of Appeals noted that the home health care aides’ claims that they did not receive the minimum sleep or meal times and that their employers did not maintain adequate records of or compensate them for hours actually worked could be a possible basis for class certification.
While the Court of Appeals decision in Andryeyeva should be looked at as a positive development for employers in the home health care industry, it still leaves the door open for potential class actions against employers who pay live-in aides for 13 hours of a 24-hour shift if employers are not keeping accurate records of their employees’ meal and sleep breaks. Employers should review their time-keeping and record-keeping policies to ensure that they would be able to defend against a potential class-action alleging that their home health care aides did not receive adequate meal or sleep periods during a twenty-four hour shift and as such should have been paid for that entire period.
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