A wage and hour suit filed against home health agency Chinese-American Planning Council Home Attendant Program, Inc. is yet another in a string of similar suits in New York challenging the compensation practices of home care agencies that employ home care aides working 24-hour “live-in” or “sleep-in” shifts.
By way of background, the New York State Department of Labor (“NYSDOL”) has long interpreted the New York Labor Law (“NYLL”) as permitting third-party employers of home care attendants to pay their employees for 13 hours of a 24-hour “live-in” shift, so long as the employee is afforded eight hours for sleep (five of which are uninterrupted) and three uninterrupted hours for meals. The NYSDOL reaffirmed this 13-hour rule in an Opinion Letter it published in March 2010. Many home care agencies in New York have adopted compensation practices for 24-hour shifts that comport with the NYSDOL’s interpretation.
In June 2012, a New York federal district court in Severin v. Project OHR, Inc. accepted the NYSDOL’s 13-hour compensation method in an action against a home care agency brought by home attendants who alleged that they were required to be compensated for the full 24-hours of each “sleep-in” shift. In Severin, the court denied the home attendants’ request to proceed with their NYLL claims as a class action because the court found that the question of whether or not each home attendant actually received eight hours of sleep time and five hours of continuous sleep was inherently fact-specific, which was likely to hinge heavily on the characteristics of particular clients to whom sleep-in home attendants were assigned.
Subsequent to the Severin decision, a New York State trial court presiding over a similar claim against a different home care agency declined to apply the NYSDOL’s 13-hour compensation rule and refused to follow the Severin decision. Instead, the court in Andryeyeva v. New York Home Attendant found that sleep and meal periods must not be excluded from the compensation of home attendants who do not actually “reside” in the home of the client but, rather, maintain their own homes. The Andryeyeva court certified a class of over 1,000 home care attendants who worked 24-hour shifts.
Following the Severin and Andryeyeva cases, a handful of similar copycat claims have been filed, including the recent claim in Lai Chan vs. Chinese-American Planning Council Home Attendant Program, Inc., noted above. New York courts continue to issue inconsistent decisions in these cases with respect to the number of hours employees who work 24-hour “live-in” or “sleep-in” shifts must be compensated. Adopting the Andryeyeva court’s position, on September 9, 2015, the New York State trial court in Lai Chan refused to apply the NYSDOL’s 13-hour rule, suggesting that aides working 24-hour shifts are entitled to 24 hours of pay. However, only a few months earlier, on May 4, 2015, another New York trial court in Moreno v. Future Care Health Services criticized the Andryeyeva decision, noting that the Andryeyeva court “failed to pay sufficient deference to the [NYSDOL’s] [O]pinion [L]etter” and endorsed the NYSDOL’s 13-hour rule for 24-hour shifts.
Until there is further clarification from the courts, the home health care industry will be fact with uncertainty and potential claims from employees working 24-hours shifts who are not paid for the full 24 hours. That said, home health agencies that choose to continue following the NYSDOL’s 13-hour pay method should, at minimum, carefully track and maintain written records of employees’ sleep and meal periods. These records should include signed acknowledgements by the employee that confirms they were afforded sleep and meal periods which were, in fact, taken and were uninterrupted.