In a significant blow to the home health care industry in New York, non-resident home health care attendants must be paid minimum wage for all hours they are required to remain at the client’s home, including hours when they may be sleeping, eating, or performing other personal tasks, the Brooklyn-based Appellate Division, Second Department, has held. Andryeyeva v. New York Health Care, Inc., 2017 N.Y. App. Div. LEXIS 6408 (N.Y. App. Div. 2nd Dep’t Sept. 13, 2017); Moreno v. Future Care Health Services, Inc., 2017 N.Y. App. Div. LEXIS 6462 (N.Y. App. Div. 2nd Dep’t Sept. 13, 2017). The court joins its sister court, the Manhattan-based First Department, in this holding. The Second Department is one of the state’s four mid-level courts of appeal.
New York Labor LawWith respect to in-home health care aides, New York’s Labor Law regulations generally provide that “the overtime rate shall be paid for each workweek for working time over 40 hours for non-residential employees and 44 hours for residential employees.” Under the applicable regulations, a “residential employee” is defined as “one who lives on the premises of the employer.”
A Wage Order issued by the New York Department of Labor (NYDOL) further provides:
The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer …. However, a residential employee – one who lives on the premises of the employer – shall not be deemed to be permitted to work or required to be available for work (1) during his or her normal sleeping hours solely because he is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment.
In 2010, the NYDOL general counsel issued an Opinion Letter interpreting this Wage Order and in the relevant portion, stated that the Department’s policy is that “live-in employees must be paid not less than...
