Live-in Home Health Aides are Entitled to be Paid for All Hours of a 24 Hour Shift

Appellate Court Holds “Live-in” Home Health Aides Who Are Not Residential Employees are Entitled to Wages for All 24 Hours of Their “Live-in” Shifts

The Second Department, an appellate-level court, found this week that live-in home health aides who are not residential employees are entitled to be paid at least minimum wage for all 24 hours of their “live-in” shifts.  This includes whether the home health aides are afforded sleep and meal periods.  The cases are Andryeyva v New York Health Care, Inc.  and Moreno v Future Care Health Services, Inc.  These two decisions are important for both employees and employers alike.

Facts of Andryeyva: What You Need to Know Right Now

The plaintiffs are employees of New York Health Care, Inc. (hereinafter NYHC).  They are employed as home health care attendants for NYHC’s elderly and disabled clients.  Plaintiffs are required by NYHC to work in the client’s residences for 24-hour shifts.  However, Plaintiffs claim that they do not “live in” the homes.

Of their 24-hour shift, the plaintiffs claim they were paid an hourly rate for 12 daytime hours and a flat rate for the 12 nighttime hours.  Plaintiffs contend this arrangement violates New York Labor Law and labor regulations because it resulted in a regular hourly wage that was below minimum wage for their 24-hour shift.  NYHC contended that they were not required to pay home health care attendants for all 24 hours, and were permitted to exclude 8 hours of sleep time and 3 hours of meal time from their wages, as long as the employee was actually afforded such time.

The trial court and Second Department disagreed and rejected NYHC’s argument because the plaintiffs were not “residential employees,” or employees who live on the premises of the employer.  Rather, the courts found that the minimum wage laws did apply to plaintiffs because, under labor law regulations (12 NYCRR s 142-2.1 (b)), employees who are “required to be available for work at a place prescribed by the employer” must be paid the minimum wage.

Therefore, the Second Department held that plaintiffs “were entitled to be paid the minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleep and meals.”

Facts of Moreno: Striking One Use of the DOL Opinion

The facts of Moreno are very similar to that of Andryeyva.  The plaintiffs are home health care attendants and employees of Future Care Health Services (hereinafter FCHS).  They work 24 hours shifts and were paid flat rates of $115 to $125 per shift.  Plaintiffs did not “live-in” the homes of FCHS’s clients.  Plaintiffs alleged that the flat rate for the hourly shifts resulted in an hourly wage that was below the minimum wage.

The lower court found that the Department of Labor, or DOL, issued an opinion letter where employers could exclude 8 hours of sleep time and 3 hours of meal time from the plaintiffs’ wages, so long as the plaintiffs actually got that time off.

However, the Second Department found that the DOL opinion failed to distinguish between “residential” and “nonresidential” employees, and it further conflicts with the plain meaning of 12 NYCRR s 142-2.1 (b).  Therefore, the Second Department stated that the DOL opinion should not be followed!

As such, the appellate court held that home health care attendants who were not “residential employees” because they lived on the premises of their employer “were entitled to be paid the minimum wage for all 24 hours of their shifts, regardless of whether they were afforded opportunities for sleep and meals.”

Impacts of the Second Department’s Holdings: What Live-In Home Health Aides Need to Know

The holdings by the Second Department in Andryeyva and Moreno call into question the DOL opinion letter.  It also forces employers to specifically classify their employees and carefully determine when and where they work, for how long, and at what rate of pay.  The decisions are strong messages that New York courts will interpret the minimum wage laws in a manner favorable to employees.

Interested in learning more?  Have questions for the attorneys at SAMUEL & STEIN?  Visit our website at or call us to learn more how we can help by dialing (646) 681-4193.

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