Back in September, the home care industry’s business model was challenged.  Historically, home care agencies paid live-in home care aides as follows –

  • 13 (of 24) hours for work
  • 8 hours for sleep (5 which are uninterrupted), and
  • 3 uninterrupted hours for meals.

The NY State Appellate Division decided two cases on the issue of sleep and meal periods being excluded from the hourly wages of a non-residential 24-hour home care worker.  The court found that these hours indeed should be included in their hourly pay, whether “residential” or “non-residential”.

This decision had many implications on the structure of some home care agencies.  The majority of their home care workers do not permanently reside with the client.  Home care agencies were faced with an important decision to drop their live-in clients or restructure their business to account for this additional expense.

On October 6, 2017, the NY State Department of Labor issued an amendment to the Minimum Wage Order regulating home care workers.  They realized that this court decision would effectively put the home care industry out of business.

The language of the amended Wage Order, §142.2.1(b), is found below in bold type:

“(b) 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, and shall include time spent in traveling to the extent that such traveling is part of the duties of the employee. 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.

Notwithstanding the above, this subdivision shall not be construed to require that the minimum wage be paid for meal periods and sleep times that are excluded from hours worked under the Fair Labor Standards Act of 1938, as amended, in accordance with sections 785.19 and 785.22 of 29 C.F.R. for a home care aide who works a shift of 24 hours or more.”

This added language reaffirms the New York Department of Labor’s policy that employers are not required to pay home care aides who work 24-hour shifts for their meal and sleep times provided that the aides’ meal periods and sleep times are also excluded from hours of work under the Fair Labor Standards Act.

Although this situation with 24-hour aides will no longer be in question, the revised Wage Order is not retroactive and, therefore, employers might still be liable for the worked hours for 24-hour aides before October 6, 2017.

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