In New York, the home care industry abides by what’s casually known as the “13-hour rule,” meaning those live-in home care aides who work a 24-hour shift are only paid 13 of those hours. The remaining 11 hours are allocated as follows: eight hours in the shift are reserved to afford the aide sleep (five hours uninterrupted) and three hours targeted for uninterrupted meals. “Live-in” is the operative phrase, as many home care aides are stamped “non-residential.” However, those home care aids, i.e., “non-residential” aides were being paid using guidelines similar to “live-ins.”
A handful of cases in the New York State Appellate Division—Moreno v. Future Care Health Servs., Inc., Andryeyeva v. New York Health Care, Inc., Tokhtaman v. Human Care, LLC—arrived at similar decisions that may change that status quo. Each of these courts ruled that non-residential home care aides working 24 hours in the home of a patient must be paid at least minimum wage for every hour of their 24-hour shift, even if that includes time for sleep and meals. The reasoning is based on the nature of the shifts. Live-in aides within a 24-hour period are given freedom of mobility, as their breaks allow them to leave the premises and technically be “off-duty.” Similarly, non-residential aides who work a 24-hour shift are technically on-call for the duration of that shift, even during sleep hours.
In response to those court opinions, the New York Department of Labor (DOL), issued an amendment of its minimum wage order that allows employers to continue to not pay non-residential home care aides for meal periods and sleep time. The DOL amendment was prompted by industry concerns that paying home care aides as proposed by the court decisions would be unaffordable and ruin the home health care industry.
The debate is indicative of how labor laws are continuing to evolve as the meaning of “on-call” is being redefined in a changing economy. It’s a reminder that employers need to be aware of potential trends in employment law and how they may impact them and their industry.