Overtime Class Action by N.Y. Home Healthcare Workers

Home healthcare employees of McMillan’s Homecare, Inc. filed an opt-out class action, Montero v. McMillan's Home Care Agency, Inc., in New York state court on April 13, 2010,  claiming their employer failed to pay overtime and seeking reimbursement of the purchase and laundry costs for uniforms and other supplies.  The complaint also alleges employees were required to attend training sessions three times per year for which they were not compensated.  Plaintiffs round out the complaint with a plea for injunctive relief based on McMillan’s alleged failure to comply with state record-keeping provisions, and for equitable relief under a theory of unjust enrichment.

The suit was brought under New York law because home healthcare workers are exempt from the protections of the Fair Labor Standards Act (FLSA).  Unlike the FLSA, however, New York law includes home healthcare workers among those protected by its wage and hour provisions.

The class, which may include hundreds of hourly employees, consists of workers who provide in-home assistance to elderly and disabled homebound clients.  The lead plaintiff alleges she and other employees were paid minimum wage for all hours worked, even when they worked as many as 60 hours per week. 

This action is a reminder to employers to review their wage and hour practices in each state where they do business to ensure that their practices comply with state as well as federal laws.  As members of one of the nation’s fastest growing industries, home healthcare employers should be especially careful to ensure that expansion of their business into multiple states includes consultation with a legal professional to ensure compliance with the laws of each state in which they operate. 

This entry was written by Heidi Alten and Meredith Shoop

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.