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March 28, 2019

Court of Appeals Upholds 13-Hour Rule - Ending Sleepless Nights for Home Health Care Employers

On March 26, 2019, the NYS Court of Appeals, the state's highest court, issued its long-awaited decision stemming from the appeals in Andryeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Services, Inc. To the relief of employers in the home health care industry, the Court of Appeals reversed the holdings of two downstate appellate courts that would have resulted in “live-in” health care aides being paid for each hour of a 24-hour shift and upheld the wage-and-hour interpretation of the NYS Department of Labor (DOL) so that employers are only required to pay those aides for 13 hours of a 24-hour shift as long as the employee is allowed a sleep break of at least eight hours (five hours must be uninterrupted) and three hours of meal break time (“the 13-Hour Rule”).

The court upheld what it considered to be long-standing, “enduring" DOL Wage Orders and guidance, reinforced by a March 2010 opinion letter from DOL counsel supporting continued application of the 13-Hour Rule to live-in home care aides. Indeed, the court noted "[t]his is not a case where DOL has vacillated in its position, rendering its interpretation capricious or unmoored from the realities of workplace life. DOL’s interpretation…has been consistent for nearly five decades, during eight gubernatorial administrations and the tenure of 13 Commissioners of Labor, representing the fair and studied judgment of officials throughout that time." The court continued its analysis by recognizing that "[a]s intended, this articulated position has informed and guided the industries that rely upon 24-hour shift workers, including home health care services employers."

The court reviewed the realities of the services provided by live-in home care aides and found that DOL’s interpretation of its own Wage Order “reflects its specialized knowledge of the labor law's evolving application to domestic workers in the home health care industry." Concluding that “DOL's interpretation based on industry reality is neither irrational nor unreasonable," the court was compelled to defer to DOL’s “highly fact-specific, industry-specific" interpretation of its own regulation in its area of expertise. The court also noted the state agency’s interpretation is in line with the federal government's guidance on compensable hours under the Fair Labor Standards Act (FLSA).

One procedural aspect of note about the two appellate-level decisions that were under review is that they had permitted aggrieved workers to proceed on a class basis. While the Court of Appeals sustained the 13-Hour Rule for payment of 24-hour home care workers, its decision suggested concern about employers abiding by that rule. As a result, it remanded the two lawsuits back to the lower courts to evaluate class-certification issues in accordance with DOL’s interpretation of the Wage Order and to consider alternative bases for class certification.

In many respects, this portion of the court’s decision will no doubt be viewed as an invitation for aggrieved workers to seek relief for perceived violations of the 13-Hour Rule. In light of that prompting, it is now even more incumbent upon employers to ensure their employees receive the requisite sleep and meal breaks and that detailed records documenting this are maintained. Employers should review, among other things, their workplace policies and rules, how their employees fill out their time cards to certify compliance with the 13-Hour Rule, and how the employer will deal with “difficult to serve" patients who may make it difficult to meet the requirement of at least five hours of uninterrupted sleep.

Employers in the home health care industry also benefited this week from the strong legislative support shown for maintaining reimbursement levels for the Consumer Directed Personal Assistance Program (CDPAP). After a 150-word article in Wednesday's edition of the State Register set off alarms about potential changes in Medicaid reimbursement rates in CDPAP, legislative pushback on Wednesday at a joint budget committee meeting prompted the state DOH to clarify that the note was not intended to signal possible cutbacks to a program that provides services for 70,000 chronically ill and disabled individuals in the state. All good cause for sound sleep for home care providers and the patients they serve.

Members of Barclay Damon's Labor & Employment and Health Care Controversies Practice Areas are available to assist with questions about the impact of the Court of Appeals decision on your business or other wage-and-hour issues affecting the health care industry.


If you have any questions regarding the content of this alert, please contact Brian Culnan, partner, at bculnan@barclaydamon.com, or another member of the firm’s Labor & Employment or Health Care Controversies Practice Areas

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