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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

April 21, 2017

New York State Appellate Court Holds That Home Care Attendant's Wage Claims Arising From 24-Hour Shifts May Proceed

On April 11, 2017, in Tokhtaman v. Human Care, LLC, the New York State Appellate Division, First Department, affirmed a lower court's ruling denying a home care agency's motion to dismiss claims for unpaid wages and overtime brought by a home care attendant who worked 24-hour shifts. The First Department found that the home care attendant may be entitled to compensation for all 24 hours worked if she was not a "residential" employee – that is, one who "lives on the premises of the employer."

In its decision, the First Department rejected the New York State Department of Labor's ("NYSDOL") "13-hour rule," which is described in an opinion letter published by the agency in 2010. The opinion letter states that a home care worker who works 24-hour shifts may be paid for only 13 hours if the home care worker is afforded sufficient sleep and meal breaks. The First Department concluded that the NYSDOL's opinion letter was inconsistent with the NYSDOL's own regulations which provide that the minimum wage must be paid for each hour an employee is "required to be available for work at a place prescribed by the employer," except that a "residential employee – one who lives on the premises of the employer" need not be paid "during his or her normal sleeping hours solely because he is required to be on call" or "at any other time when he or she is free to leave the place of employment." In particular, the First Department found that the opinion letter conflicts with the regulations, insofar as it fails to distinguish between "residential" and "nonresidential" employees.

The First Department is the first New York State Appellate Court to address this issue, which has been considered by several New York State and federal trial courts in the context of recent wage claims against home care agencies. A New York State trial court in Andryeyeva v. New York Home Attendant Agency found that that sleep and meal periods may not be excluded from the wages of home care workers that do not reside in the home of a client, and certified a class of over 1,000 home care workers who worked 24-hour shifts. An appeal of the Andryeyeva decision is currently pending before the Appellate Division, Second Department.

Many home care agencies have reasonably relied upon the NYSDOL's 2010 opinion letter in fashioning their pay practices. If the First Department's holding in Tokhtaman stands, home care agencies may be required to compensate attendants working 24-hour shifts for the full 24 hours; however, many home care agencies lack the funding to provide such compensation. Accordingly, the First Department's ruling has the potential to disrupt the availability of 24-hour home care services, leaving many elderly and disabled individuals without in-home care. In addition, the First Department's decision is likely to prompt additional class and collective wage claims against home care agencies by home care attendants who work 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 or Melissa M. Zambri, Co-Chair of the Barclay Damon Health Care & Human Services Practice Area at


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