New York State Supreme Court Finds 24-Hour Home Care Attendants Must Be Paid For Sleep And Meal Periods

The New York State Department of Labor ("NY DOL") has consistently enforced 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.1 A recent decision by the New York State Supreme Court (the highest trial-level court for civil cases in the New York state court system) has rejected the NY DOL's interpretation of the NYLL and refused to find binding a New York federal court decision that relied on a 2010 NY DOL Opinion Letter addressing wage practices for home care attendants.2 Instead, in Andryeyeva v. New York Home Attendant Agency, the New York state court 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 action of over 1,000 home care attendants who worked 24-hour shifts.3 There are additional cases raising these same issues pending in the New York state court, including at least one other filed by the same plaintiff's firm.4 Therefore, home care agencies operating in New York are at risk of copy-cat litigation and should be diligent with their pay practices.

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 an Opinion Letter, RO-090169,9 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 its own minimum wage order and confirmed 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...