NYS DOL Issues New Regulation: Residential Home Care Workers Only Need to be Paid for 13 Hours of a 24 Hour Shift
NYS Department of Labor Adds Regulations that Home Care Workers Only Need to be Paid for 13 Hours of a 24 Hour Live-in Shift: New York City Wage and Hour Attorney Explains
In likely response to a pair of two appellate-level court decisions handed down within the last month, including one that undermined an important New York State Department of Labor (NYS DOL) opinion letter, the NYS DOL issued a new regulation affirming that home health aid attendants who are “residential” employees only need to be paid for 13 hours of a 24 hour live-in shift and not be paid for meal and sleep periods even though the employee cannot leave the premises. This is both an important clarification, but it still appears to leave the regulation vulnerable to the appellate-court’s scrutiny issued just mere weeks ago regarding “live-in” employees who are not residential employees.
Amended Regulation from the NYS DOL Regarding Home Care Aides
The regulation that was amended was 12 NYCRR s 142-2.1 (b), which is part of the “basic minimum hourly wage rate and allowance” portion of the NYS DOL regulations. The relevant subdivision is provided below with the text bolded of the new amendment:
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, and shall include time spent in traveling to the extent that such traveling is part of the duties of the employee. 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. Notwithstanding the above, this subdivision shall not be construed to require that the minimum wage be paid for meal periods and sleep times that are excluded from hours worked under the Fair Labor Standards Act of 1939, as amended, in accordance with sections 785.19 an 785.22 of 29 C.F.R. for a home care aide who works a shift of 24 hours or more.
The amended was promulgated (or enacted) and effective immediately as of October 6, 2017.
Effect of This Regulation for Home Health Aide Attendants: What it Means for New York City Employers and Employees
The amendment to the regulation is nothing new by any means. This amendment codifies the NYS DOL opinion letter dated March 11, 2010 which provided that home health aide workers only needed to be paid for 13 hours out of a 24 hour shift, which is the difference of the total shift hours minus 8 hours for sleep and 3 hours for meals (as long as sleep and meal time was actually provided). This opinion letter, while with no force of law, was still instructive authority for a court’s use in rendering a decision, as well as for employers and employees.
However, this opinion letter was undermined by the New York State Appellate Division, Second Department, in the case of Moreno Future Care Health Services, Inc. The appellate court found that this opinion letter did not specify the difference between “residential” and “nonresidential” employees which conflicts with the “plain meaning” of the regulation. Thus, the plaintiffs, who were live-in employees but not residential employees, were required to be paid for all 24 hours. This is what was just amended. The Moreno court further went on to state that the plaintiffs were not “residential” employees who lived on the premises of their employer but were rather prescribed to be at a location, and therefore they were entitled to be paid for minimum wage for all 24 hours of their shifts.
For this proposition, the Moreno court cited to the regulation and also to Andryeyeva v New York Health Care, Inc., which was handed down on the same day. This decision harped on the fact that the NYS DOL opinion letter did not distinguish between “live-in employees” and “residential employees,” and further noted that the plaintiffs were not actually living on the premises of their employers. Rather, the employees were living at the place of their employer’s clients—the consumers needing services. Thus, the appellate court in Andryeyeva found that the plaintiffs were still entitled to be paid for all 24 hours at a rate not lower than minimum wage.
Therefore, as it reads now, the amended language of the regulation clarifies only part of the gap in the opinion letter by expressly announcing “residential employees,” who live on the premises of their employer, do not need to be paid minimum wage for meal periods and sleep times that are actually afforded to the employee.
However, the regulation still does not distinguish between “live-in” and “residential” employees. It would appear that the NYS DOL is still creating, at least implicitly, a distinguishing between “live-in” and “residential” employees. Thus, the amended regulation does not remedy or address whether a “live-in” employee—one who does not live on the premises of their employer, need to be paid minimum wage for meal and sleep hours. Given the holdings in Moreno and Andryeyeva, it would appear that “live-in” employees must still be paid for such hours.
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