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September 29, 2017

A Second New York State Appellate Court Rejects the Department of Labor's "13-Hour Rule" and Finds That Home Care Attendants Working 24-Hour Shifts Must Be Compensated for All 24-Hours

On September 13, 2017, a second New York State appellate court rejected the New York State Department of Labor's ("NYSDOL") "13-hour rule" on which numerous home care agencies reasonably relied in compensating home care attendants who worked 24-hour "live-in" shifts.

By way of background, the "13-hour rule," which is described in a 2010 opinion letter published by the NYSDOL, states that a home care worker who works a 24-hour shift may be paid for only 13 hours if the home care worker is afforded sufficient sleep and meal breaks. Home care agencies have relied on this opinion letter in compensating their employees for only 13 hours of a 24-hour shift when the employee receives sufficient sleep and meal periods.

As we previously reported in a prior legal alert, on April 11, 2017, the New York State Appellate Division, First Department held in Tokhtaman v. Human Care, LLC that the NYSDOL's 13-hour rule was inconsistent with the NYSDOL's own regulations. On September 13, 2017, the New York State Appellate Division, Second Department in Andreyeva v. New York Health Care, Inc. joined the First Department and similarly rejected the NYSDOL's 13-hour rule, finding it to be "neither rational nor reasonable" because, according to the appellate court, "it conflicts with the plain language" of the NYSDOL's regulations. Accordingly, the Second Department held that, to the extent that the plaintiff home care attendants were not "residential" employees (that is, those that "live on the premises of their employer"), "they 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." Simultaneously with the Andreyeva decision, the Second Department made the same finding in Moreno v. Future Care Health Services, Inc., another wage claim filed against a different home care agency by home care attendants on behalf of themselves and all "similarly situated employees" who worked 24-hour shifts.

If the First and Second Departments' decisions stand, home care agencies will likely be required to compensate home care attendants staffed to 24-hour shifts for the full 24 hours. However, most home care agencies lack the funding to provide such compensation. As a result, these rulings have the potential to disrupt the availability of 24-hour home care services, leaving many elderly and disabled individuals without in-home care. In addition, these rulings may prompt additional wage claims against home care agencies by employees who worked 24-hour shifts.

If you have questions or require further assistance regarding the information contained in this Legal Alert and the impact on your organization, please contact Susan A. Benz, Co-Chair of the Barclay Damon Health Care & Human Services Practice Area at, Melissa M. Zambri, Co-Chair of the Barclay Damon Health Care and Human Services Practice Area at or Laurence B. Oppenheimer, Chair of the Labor & Employment Practice Area at


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