Home health care aides working twenty-four hour shifts can be paid for as little as thirteen hours under certain conditions, according to a March ruling from the New York Court of Appeals in Andryeyeva v. New York Health Care, Inc. The Court of Appeals remanded, however, for lower courts to consider whether employers were adhering to the sleep and meal time requirements of the minimum wage law.
The DOL Minimum Wage Order
New York’s Minimum Wage Act requires that all employees be paid a minimum wage for each hour worked. The Act delegates to the Commissioner of Labor the authority to set the minimum wage by issuing “wage orders.” In March 2010, the Department of Labor issued an opinion letter on the wage order applicable to home health care aides, including the calculation for “live-in employees,” who are assigned to a patient’s home on twenty-four hour shifts. The letter stated that:
- Live-in employees must be paid at least thirteen hours for each twenty-four hour period, as long as they receive: (a) eight hours for sleep and actually receive five hours of uninterrupted sleep; and (b) three hours for meals.
- If an aide does not receive five hours of uninterrupted sleep, the sleep period exclusion does not apply and the employee must be paid for all eight hours.
- If the aide does not receive three work-free hours for meals, the three hour meal period does not apply and the employee must be paid for all three hours.
Plaintiffs’ Class Action Allegations and the Appellate Division Ruling
In two separate cases, plaintiffs sought to certify a class of home health care aides based on the employers’ failure to pay a required minimum wage for each hour of a twenty-four hour shift. In addition to the failure to pay for each hour of the twenty-four hours, plaintiffs alleged that they routinely did not receive five hours of uninterrupted sleep and were not allowed to take meal breaks.
The Appellate Division affirmed the certification of a class, rejecting the DOL interpretation of the wage order as “neither rational nor reasonable.” The Appellate Division reasoned that the employees were required to be present at the patient’s home and to perform services as needed and be available for work for the full twenty four hours.
In October 2017, DOL issued a Notice of Emergency Rulemaking in response, “to preserve the status quo, prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home.” In a separate action in September 2018, the Supreme Court in New York County invalidated the emergency regulation.
Court of Appeals Sides With DOL and Employers
The Court of Appeals first cited authority that courts must defer to an administrative agency’s rational interpretation of its own regulations. Also, an agency construction that has been followed for a long period of time is entitled to great weight.
As applied to twenty-four hour shift workers, the DOL interpreted the requirement “to be available for work at a place prescribed by the employer” to exclude up to eleven hours for sleep and meal breaks, based on DOL’s understanding that these are regularly scheduled substantial periods of assignment-free personal time. The Court of Appeals concluded that the DOL interpretation was not inconsistent with the plain language of the wage order, and was not an irrational or unreasonable construction as applied to 24-hour shift workers.
The Court observed that the DOL interpretation had been consistent for nearly five decades, and had been set out in the DOL Investigator’s Manual and DOL memoranda and opinion letters. The DOL advanced its conclusion that employees who enjoy genuine sleep and meal breaks are not meaningfully available for work during those periods. The Court found that with respect to home health care aides, this interpretation was supported by DOL’s experience with the particularities of the home health aide occupation. The Court also found DOL’s interest in conforming state and federal guidance on the proper calculation of compensable hours to be reasonable.
Remand for Allegations of Lack of Sleep and Meal Times
Although the Court held for the employers on the DOL twenty-four hour interpretation, it remanded for the lower courts to consider the merits and class certification arguments concerning the plaintiffs’ other allegations. The Court described the DOL interpretation as a “hair trigger” that immediately makes the employer liable for paying every hour of the 24-hour shift if it fails to provide the minimum sleep and meal times required, and on remand the lower courts would have to consider whether the employers had complied with all DOL requirements.
The Court of Appeals stressed that it was not ignoring the “claims that a vulnerable population of workers is being mistreated.”
Plaintiffs’ allegations are disturbing and paint a picture of rampant and unchecked years-long exploitation. Plaintiffs allege, among other things, that they rarely received required sleep and meal time during 24-hour shifts, were expected and required to attend to patients numerous times each night, and that defendants failed to track actual hours worked or make a serious effort to ensure adequate sleep and meal times, as required by law.
This decision avoids the danger expressed by DOL that a ruling requiring twenty-four hour payment for all home health care aides could lead to “the collapse of the home care industry.” Nevertheless, it does signal that DOL and the Courts are likely to look very closely to whether home health care employers are rigorously adhering to the “hair trigger” minimum wage requirements for those workers.