Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As Littler reported in March of 2015,1 a New York Supreme Court, Kings County Justice found that sleep and meal periods must not be excluded from the hourly wages of a home attendant who does not reside in the home of his or her client, and certified a class of over 1,000 home care attendants who worked 24-hour shifts. The decision in that case, Andryeyeva v. New York Home Attendant Agency,2 is on appeal to the Appellate Division, Second Department. Littler filed an amicus curiae brief in support of the employer in that case. Oral argument was held on January 9, 2017, and the parties are anxiously awaiting a decision.
However, multiple other lawsuits have been filed against home care agencies since the Supreme Court’s decision in Andryeyeva, including Tokhtaman v. Human Care, LLC et al., which was filed in the New York Supreme Court, New York County.3 On April 11, 2017, the Appellate Division, First Department affirmed the Supreme Court’s ruling denying Defendant Human Care’s motion to dismiss. If the First Department’s decision stands, it could have a significant impact on the home care industry and patients who rely on 24-hour home care to stay out of institutions.
Tokhtaman v. Human Care, LLC – Background
In Tokhtaman, the plaintiff alleged that she was owed minimum wage, overtime and “spread of hours” pay because she was paid only 13 hours of a 24-hour shift. Although she was a “live-in” and worked 24-hour shifts, she claimed she did not reside in the home of her employer, and thus the “13-hour” rule did not apply to her. Defendant Human Care filed a motion to dismiss the complaint on the grounds it failed to state a cause of action in reliance on a March 11, 2010 New York State Department of Labor ("NY DOL") Opinion Letter RO-090169, which interpreted the New York Labor Law (“NYLL”) as permitting third-party employers of 24-hour home care attendants to pay their employees for 13 hours of a 24-hour shift, provided the employee is afforded eight hours of sleep, five of which are uninterrupted, and three uninterrupted hours for meals.4
In the Tokhtaman decision, Justice Carol Robinson Edmead denied the motion to dismiss on several grounds, including that she believed the March 11, 2010 Opinion Letter’s determination that a live-in employee is only required to be paid 13 hours of a 24-hour shift (when the required breaks and sleep is afforded) only applies to residential employees (defined as those who reside in the home of their employer), yet Tokhtaman alleged in her complaint that she was employed by the agency, not the client she was taking care of, and had a separate residence.
Human Care appealed that decision to the First Department and a decision was issued on April 11, 2017 affirming the Supreme Court’s decision.
Relevant Provisions of the New York Labor Law
In New York, "[s]leep-in home attendants employed by ... vendor agencies" are not exempt from the NYLL's coverage.5 The NYLL's regulations provide that "the overtime rate shall be paid for each workweek for working time over 40 hours for non-residential employees and 44 hours for residential employees."6 "Residential employee" is defined by the applicable regulations as "one who lives on the premises of the employer."7
The minimum wage order (the "Wage Order") applicable to home attendants provides:
The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer.... However, a residential employee – one who lives on the premises of the employer—shall not be deemed to be permitted to work or required to be available for work (1) during his or her normal sleeping hours solely because he is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment.8
The March 11, 2010 Opinion Letter
On March 11, 2010, the NY DOL issued Opinion Letter RO-0901699 relating to live-in companions that addressed a vendor agency's inquiries regarding wage practices for home care attendants. In the Opinion Letter, the NY DOL's general counsel's office interpreted the minimum wage order so as to confirm that home care attendants working 24-hour shifts who are employed by vendor agencies are considered "non-residential" and must be paid overtime after 40 hours of work per week.
The NY DOL explained that although New York Labor Law Regulation 12 N.Y.C.R.R. § 142-2.1 provides that the minimum wage shall be paid to employees for the time an employee is permitted to work or is required to be available at a place prescribed by the employer, "'residential employees' (those who live on the premises of their employer), are not deemed to be working during normal sleeping hours merely because the employee is 'on call' for those hours or at any time the employee is free to leave the place of employment."10 However, the NY DOL found that whether the attendant is "residential" is only "important for the purposes of determining the number of hours at which overtime is owed (44 for residential employees vs. 40 for non-residential employees)," however, "the Department applies the same test for determining the number of hours worked by all live-in employees."11
The Opinion Letter continued:
In interpreting these provisions, it is the opinion and policy of this Department that live-in employees must be paid not less than for thirteen hours per twenty-four hour period provided that they are afforded at least eight hours for sleep and actually receive five hours of uninterrupted sleep, and that they are afforded three hours for meals. If an aide does not receive five hours of uninterrupted sleep, the eight-hour sleep period exclusion is not applicable and the employee must be paid for all eight hours. Similarly, if the aide is not actually afforded three work-free hours for meals, the three-hour meal period exclusion is not applicable.12
Thus, the NY DOL determined that home care attendants who work 24-hour shifts must only be paid for 13 hours provided the home care attendant was afforded eight hours of sleep, five of which were uninterrupted, and was afforded three uninterrupted hours for meals.
Tokhtaman v. Human Care, LLC – Appellate Division, First Department Decision
In its April 11, 2017 decision, the panel of five Justices of the First Department unanimously affirmed the denial of Defendants’ motion to dismiss.13 The First Department held that the Department of Labor Regulations, 12 NYCRR § 142-2.1(b), “provides that the minimum wage must be paid for each hour an employee is ‘required to be available for work at a place prescribed by the employer,’ except that a ‘residential employee – one who lives on the premises of the employer’ need not be paid ‘during his or her normal sleeping hours solely because he is required to be on call’ or ‘at any other time when he or she is free to leave the place of employment.’” The First Department held that the March 11, 2010 Department of Labor Opinion Letter which extended this “13-hour rule” to non-residential employees “conflicts with 12 NYCRR 142-2.1(b) insofar as the opinion fails to distinguish between ‘residential’ and ‘nonresidential’ employees, and should thus not be followed in this respect. As such, if plaintiff can demonstrate that she is a nonresidential employee, she may recover unpaid wages for the hours worked in excess of 13 hours a day.” Likewise, the First Department found Tokhtaman may also be able to prove she is eligible for spread of hours pay because she should have been paid 24-hours for some shifts.
Also notably, the First Department found that Tokhtaman has standing to sue as a third-party beneficiary of the alleged contracts between Human Care and the governmental agencies, which requires Human Care to pay Tokhtaman certain wages pursuant to Public Health Law § 3614-c.
This case will hopefully be appealed to the New York Court of Appeals. If it is upheld, it will likely significantly reduce the availability of 24-hour live-in care in New York State. The six-year statute of limitations on New York Labor Law claims may result in substantial backpay liability, which may lead to many home care agencies closing their doors. Potential liability may be assessed at 11 hours per 24-hour shift, plus overtime, spread of hours pay, and liquidated damages. This may result in the unemployment of many home care attendants, and many disabled or elderly individuals losing their 24-hour care and becoming institutionalized.
Littler has developed several strategies to address lawsuits that may result from this decision and alternative compensation and staffing models designed to better insulate home care providers from the same.14
1 See Angelo Spinola and Lisa Griffith, New York State Supreme Court Finds 24-Hour Home Care Attendants Must be Paid for Sleep and Meal Periods, Littler Insight (Mar. 25, 2015).
2 45 Misc. 3d 820 (Sup. Ct. Kings County Sept. 16, 2014) (Demarest, J.) (hereinafter "Andryeyeva"). The Andryeyeva decision is currently pending appeal.
3 Index No. 151268/2016.
4 This article does not address wage and hour practices where the employees are covered by a collective bargaining agreement or employed directly by the patient.
5 Severin v. Project OHR, Inc., 2012 U.S. Dist. LEXIS 85705, * 16 (S.D.N.Y. 2012) (citing Settlement Home Care, Inc. v. Indus. Bd. of Appeals of the Dep't of Labor, 151 A.D.2d 580 (2d Dep't 1989)).
6 12 N.Y.C.R.R. § 142-3.2.
7 12 N.Y.C.R.R. § 142-2.1.
8 12 NYCRR § 142-2.2.
9 An attorney representing an employer of "Live-In Companions" sent in a "Request for Opinion" to the NY DOL and, in response, the general counsel's office issued an opinion letter. This was an accepted method of obtaining advice regarding compliance with the NYLL. However, opinion letters are strictly advice and not law and can become obsolete based on changes in law, rules or regulations.
10 Id. pp. 3-4.
11 Id. p. 4 (emphasis applied).
13 The First Department has jurisdiction over New York and Bronx counties, while the Second Department has jurisdiction over Nassau, Suffolk and Kings counties.
14 Please contact Littler if you would like to discuss these strategies.