Home Health & Hospice Week

Expect many more aide lawsuits to come.

A new decision from a New York state appeals court reverses lower court rulings that home care providers would have to pay aides in that state for every hour of a 24-hour shift, even if they were sleeping and taking meal breaks during those hours.

“The determination … provides welcome relief to New York’s vast home healthcare industry, the viability of which the lower court cases called into question,” note attorneys with law firm Jackson Lewis in The National Law Review.

Background: A New York state “Wage Order” governs home care aide compensation, and it makes distinctions between “on call” and “subject to call” employees and other situations. The state Department of Labor “has interpreted its Wage Order to require payment for at least 13 hours of a 24-hour shift if the employee is allowed a sleep break of at least 8 hours — and actually receives five hours of uninterrupted sleep — and three hours of meal break time,” notes a March 26 decision in Andryeyeva v. New York Health Care Inc. and Moreno v. Future Care Health Services Inc.

In the cases, lower courts “reasoned that, because plaintiffs were required to be present at the patient’s home and to perform services as needed if called upon, they were ‘available for work,’ regardless of whether they were afforded sleep and meal breaks,” the appeals court says. But “for decades, DOL has consistently interpreted the Wage Order as applied across occupations to account for substantial periods of employee inactivity during a 24-hour shift when an employee is able to utilize the time for personal matters,” the higher court says.

The ruling goes on to note various DOL and other state issuances addressing the matter, including emergency regulations. “In making our determination, we must give our foremost consid­eration to DOL’s opinion letters and prior statements because they represent a long-standing articulation of its interpretation of the Wage Order, as applied to nonresidential 24-hour shift employees, including home health care aides,” the decision says. And “plaintiffs’ argument is essentially a claim that DOL must issue a separate wage order for home health care aides.”

The decision was not, however, unanimous. The dissenting opinion maintains that the “result is not only unfair, it is completely at odds with the plain text of the wage order.” It continues, “for non-residential employees like plaintiffs — who remain consistently ‘available for work,’ even during sleeping hours — sleep time cannot be deducted from their pay.”

Concession: Despite confirming current minimum wage rules, “we do not ignore plaintiffs’ and amici’s claims that a vulnerable population of workers is being mistreated,” the majority acknowledges in the decision. “Plaintiffs’ allegations are disturbing and paint a picture of rampant and unchecked years-long exploitation. Plaintiffs allege, among other things, that they rarely received required sleep and meal time during 24-hour shifts, were expected and required to attend to patients numerous times each night, and that defendants failed to track actual hours worked or make a serious effort to ensure adequate sleep and meal times, as required by law.”

“It is for DOL and the Legislature, not this Court, to consider whether the sleep and meal time exemption is a viable methodology to ensure employer compliance with the law and proper wage payment in the case of home health care aides,” the decision says.

“This ruling upholds the law as interpreted by the state Department of Labor, as applied by the state Department of Health, and as followed in good-faith by providers who have been directed to comply with the 13-hour rule,” notes the Home Care Association of New York State in a release. The trade group also “fervently advocate[s] for … reimbursement to provide wages and benefits reflecting the vital nature and value of the care our home care workers render every day,” it says.

Watch For This ‘Hair Trigger’

While the decision is a victory for the industry, agencies must still be wary. “Compliance with the 13-hour rule remains paramount,” Jackson Lewis stresses.

“If, in fact, the aide does not receive the minimum break time because the patient needs assistance, the aide is paid for 24 hours of work time,” the opinion emphasizes. “As DOL confirms, failure to provide a home health care aide with the minimum sleep and meal times required under DOL’s interpretation of the Wage Order is a ‘hair trigger’ that immediately makes the employer liable for paying every hour of the 24-hour shift, not just the actual hours worked.”

In other words: “Even if a home health care aide sleeps without interruption for four hours and 59 minutes, but is not able to obtain five full hours of sleep, DOL mandates the employer pay for the entire eight hours allotted for sleep,” the court elaborates.

“Home care agencies and those who broker deals to sell and buy agencies may feel relieved that the threat of six years’ back liability when 24-hour shift workers were paid less than 24 hours for each assigned shift has been lessened,” note attorneys for law firm FordHarrison in online analysis. “But the due diligence necessary before acquisition remains as important as ever.”

Why? Many aides claim they weren’t given the necessary sleep and work breaks for compliance, and thus are owed for 24 hours of pay instead of 13. You can expect many lawsuits on the matter, including class actions as well as filing of “multiple individual cases … to force agencies to defend multiple costly lawsuits at the same time, and thereby … force settlements,” FordHarrison suggests.

Do this: New York agencies should “immedi- ately review their current policies to ensure they contain protective language,” FordHarrison counsels. “If these policies and procedures are not in place, are too loose to be effective, are inconsistent, or are not followed and complied with uniformly, an agency will be exposed to government audits and lawsuits,” the firm warns.