As we recently reported, on October 6, 2017, the New York State Department of Labor (“NYDOL”) issued an amendment to its Minimum Wage Order for Miscellaneous Industries and Occupations regulation to clarify that bona fide meal periods and sleep times may be excluded from hours worked by home care aides who work a shift of 24 hours or more in accordance with federal Fair Labor Standards Act regulations.

The NYDOL issued the amended regulation to this Wage Order as an “emergency regulation” pursuant to the State Administrative Procedure Act §202(6).  Thus, the emergency regulation is only effective for 90 days.  The NYDOL, when issuing an emergency regulation, must publish a statement explaining why the issuance of the emergency regulation is necessary.  We have been advised that this statement will be available in the next two weeks and, in any event, published in the State Register on October 25, 2017.  

Once the 90-day period has expired, the NYDOL can renew the emergency regulation for an additional 60 days but again must publish a statement explaining why the emergency regulation was necessary. Theoretically, the NYDOL can re-issue the emergency regulation in perpetuity every 60 days, but each time would be required to issue a statement—which would then be subject to challenge—explaining why the renewal is needed.

However, the NYDOL can issue a final, revised regulation.  To do so, the NYDOL would have to participate in a formal notice-and-comment process and hold a hearing to make the emergency regulation “final.”

While it appears the NYDOL has provided a temporary fix going forward for employers, we must still wait to learn how the NYDOL decides to “finalize” the amendment to the Wage Order and what challenges there might be to the regulation. 

Littler will continue to monitor this situation and provide updates as new developments take place, as well as provide our clients with strategies to better insulate home care providers.