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On March 26, 2019, the NY Court of appeals issued a stunning ruling, affirming that “live-in” aides can be paid for 13 hours of work as opposed to 24 hours, under certain conditions. This was a reversal of the previous Appellate court decision. Justice Jenny Rivera, writing for the majority of the court, upheld the Department of Labor’s (“DOL”) interpretation of its Wage Order regulation, which permits the payment of 13 hours of work in a 24-hour shift, as long as the live-in employee sleeps for at least 8 hours (5 of which are uninterrupted) and receives at least three hours of meal break times.
The court found that the DOL’s interpretation of its wage law was neither irrational or unreasonable and reversed the previous Appellate Division decisions, Andryeyeva v. NYHAA and Moreno v. Future Care. In these cases, the court held that agencies who employed the live-ins, were required to pay for their entire time in the home (24 hours v. 13 hours) and included awarding back wages, overtime, etc., for at least six years, prior. The previous court reasoned that since the workers were essentially “on-call” during the night for the client, whether or not they were eating or sleeping, they were entitled to be paid for the entire shift.
Although this is welcome news for the home care industry and the individuals who rely on such care, there was a warning to the industry. The Justices focused on the mistreatment of some live-in workers by their employers, who:
a) do not permit required meal and sleep times,
b) keep a blind eye to workers who attend to their clients’ numerous times during the night and
c) do not track actual hours worked.
It is clear that the DOL will be regulating these home care practices very closely. Providers should:
• Keeping diligent logs and timesheets of employee working hours;
• Constantly communicate with their employees about hours worked;
• Develop a program to assess and reassess clients when their needs change; and
• Continuously educate their workers and supervisors on compliance with the ruling
This alert was co-authored by Evan M. Gilder, Principal of Redlig Financial Services Inc., and Michael LaMagna, Partner of Riker Danzig. Evan and Mike can be reached, respectively, at egilder@redlig.com or 646-827-3600, and mlamagna@riker.com or 914-539-3365.