The New York State Department of Labor (NYDOL) recently issued an amendment to its Minimum Wage Order for Miscellaneous Industries and Occupations (Wage Order) in response to recent court decisions finding that non-residential 24-hour home care attendants, also referred to as aides, must be paid for their sleep and meal periods. The new amendment states that bona fide meal periods and sleep times may be excluded from hours worked by home care aides who work a shift of 24 hours or more in accordance with federal Fair Labor Standards Act regulations.
NYDOL Historical Guidance and Policy
Historically, “live-in” home care aides were paid 13 hours of a 24-hour shift in accordance with the NYDOL's policy and guidance. Known as the “13-hour rule,” the rule permitted employers of home care aides working 24-hour shifts, whether “residential” or “non-residential,” to pay aides for 13 hours, provided the aides are allowed 8 hours of sleep, 5 of which are uninterrupted, and 3 uninterrupted hours for meals.
In the last several months, three state appellate courts issued rulings that contradicted NYDOL’s long-standing policy and guidance. These courts ruled that non-residential home care aides employed by third-party agencies must be paid for every hour of a 24-hour shift, regardless of sleep and meal periods. Essentially, the courts 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.
Amended Order
After receiving complaints that the appellate courts’ rulings would, among other things, effectively put the home care industry out of business, the NYDOL added an exception to the Wage Order and released the amended Order on an emergency basis. It provides as follows:
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 1938, as amended, in accordance with sections 785.19 and 785.22 of 29 C.F.R. for a home care aide who works a shift of 24 hours or more.
As you can see, the new language reaffirms the NYDOL’s policy and guidance that employers are not required to pay home care aides who work 24-hour or longer shifts for their meal and sleep times provided that the aides’ meal periods and sleep times are also excluded from hours of work under the FLSA.
In an explanatory statement titled “Home Care Aide Hours Worked” (“Notice”) issued on October 25, 2017, the agency explained that it considered the emergency regulation necessary for the “preservation of public health, public safety and general welfare.” Specifically, NYDOL stated it issued the emergency regulation in order to “preserve the status quo, prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home. . . .”
Coverage: Employers of home care aides who work in New York.
Effective: The amendment was made effective immediately (October 6, 2017), and, because it was released as an emergency regulation, the amendment is effective for only 90 days.
Action Required: You should continue ensuring that live-in home care aides are provided adequate sleeping facilities and that their meal and sleep times are not interrupted. We will continue to monitor this issue and notify you of future developments.
In the interim, please contact your HR Business Partner with any questions you may have.