The home health care industry has been buffeted in the past year by almost constant winds of change and conflicting guidance. Home health care agencies, which provide crucial live-in aides to New York’s most vulnerable, elderly and ill residents, had relied on the New York Department of Labor’s guidance to pay their workers for years. The NYDOL’s policy since 2010 was that “live-in” aides should be paid for 13 hours of a 24 hour shift, as long as those aides were allowed 8 hours of sleep, (5 of those hours must be uninterrupted), and 3 uninterrupted hours for meals. This policy, known in the industry as the “13 hour rule” meant that aides were compensated for hours worked, but agencies were not bankrupted by needing to pay for the full 24 hour shifts.
Since the spring, three New York State Appellate Division cases have ruled that non-residential home health care attendants must be paid for the entire 24 hour shift, even if they take the requisite sleep and rest periods. The three cases, Tokhtaman v. Human Care, LLC, 2017 NY Slip Op 02759 (1st Dept. Apr. 11, 2017); Andryeyeva v. New York Home Attendant Agency, 2017 NY Slip Op 06421 (2d Dept. Sept. 13, 2017) and Moreno v. Future Care, 2017 NY Slip Op 06439 (2d Dept. Apr. 11, 2017) rocked the home health care industry.[1] Violations of the New York Labor Law come with a six-year statute of limitations, so agencies that have been faithfully following the 13 hour rule for the past seven years would nonetheless be hit with lawsuits for enormous amounts of unpaid wages. The result? Many agencies would be bankrupted, many aides would be without employment and many needy New Yorkers would be without care.
After an...
