Minimum wage in New York and across the nation has been a hot topic in recent years as many states try to increase wages for many workers. New York has established a plan to raise the minimum wage to a statewide $15.00 per hour, in small increments, over the next several years. Few employment situations exist where workers don’t earn at least the minimum wage.
The wages of NY home healthcare workers, specifically, have been the subject of recent news reports because of three 2017 New York Appellate Court decisions. These decisions have refused to comply with the New York Department of Labor’s (NYDOL) wage and hour policies concerning home health aides, causing the DOL to issue emergency guidelines.
Historically, the NYDOL has been consistent with the federal Fair Labor Standards Act (FLSA) and its view of how to pay home health care workers who spend 24 hours with clients.
It applies what is commonly called the “13-hour rule.” This rule basically means that home health care workers must receive pay for 13 hours of work for every 24-hour shift regardless of whether they are full-time residents in the clients’ homes. The NYDOL has stuck to its longstanding guidelines that workers receive wages for ‘each hour worked.’ This structure assumes that workers in this situation can get at least 8 hours of sleep, 5 of which are uninterrupted, and 3 hours for their meals. That the employees may be called on during the night to work, does not matter. They should receive pay for the 13 hours they work.
The New York Appellate cases are – Andryeyeva v. New York Health Care, Inc., Moreno v. Future Care Health Services, Inc., and Tokhtaman v. Human Care, LLC. The decisions by the judges in these cases resulted in a step away from the traditional policy of the NYDOL. The appellate courts determined that non-residential home health care aides, employed by third-party agencies must be paid for every hour of a 24-hour shift, regardless of their opportunities to sleep and eat. Ironically, the courts primarily relied on the language of the NYDOL to support their positions.
The NYDOL wage-hour guidelines state:
“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 such employee 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.” What does this mean? That a residential employee only gets paid for the time he or she works, should not get paid for normal sleep time and meal times- hence, the 13-hour rule.
However, “The Appellate Divisions essentially found that home care aides working for a third-party agency are “non-residential,” meaning they do not “live on the premises of the employer” and, thus, this exception in the Wage Order does not apply to them.” Therefore, their employers must pay these workers for the full 24-hour shift.
Why is it so important to keep the 13-hour rule in place? Because, some feel, the home health care industry, both private, and those that operate government programs would likely be decimated if it had to pay employees minimum wages for 24-hour shifts. It could be a financial impossibility for many employers.
The NYDOL issued emergency amended regulations that will remain in place until January 30, 2018. The regulations clarify that time spent on meal breaks and sleeping is not time that is compensable for home health care workers who do not reside in the homes of their clients. The NYDOL will have to take additional action to make the change a permanent one.
Computing hours for which you must receive wages can be complicated no matter what you do for a living. If you are a home health care worker, construction worker, delivery person, waiter or waitress, you deserve to receive pay for every hour you work. When you don’t, it may violate your legal rights, and your employer may be liable.
The unpaid wage attorneys at Leeds Brown Law, P.C. are available to help make sure you are getting:
Our attorneys have spent decades helping employees in and around New York City recover unpaid wages their employers owe. If you have an unpaid wage claim, we can provide you with practical advice and strong advocacy.
Call us today for a free review of your case, with no obligation. You can reach Leeds Brown 24/7 by calling 1-800-585-4658. We look forward to hearing about your unpaid wage claim and starting the process of recovering the money your employer legally owes.