New York High Court Upholds “13-Hour Rule” for Home Health Aides

By Douglas Lipsky

In a highly anticipated ruling, the New York Court of Appeals recently upheld the Department of Labor’s 13-hour rule governing home health aides who work shifts of 24 hours or more. The high court reversed two appellate division rulings overturning the rule, which is seen as a victory for the state’s home health industry. Nonetheless, violations of the DOL’s 13-hour rule are still common, which makes having powerful representation by an experienced employment law attorney essential.

The Backdrop

After two appellate court rulings in 2017 found home health aides were entitled to be paid for minimum wage for all 24 hours of their shifts, the New York State Department of Labor (DOL) issued an emergency regulation reiterating its March 2010 opinion letter regarding the minimum wage rule. In sum, the rule provides for home health care aides to only be paid for 13 hours of a 24 hour shift, as long as they are given 8 hours of sleep time (with five of those being uninterrupted hours) and 3 hours of meal breaks. An aide who cannot get at least 5 hours of consecutive sleep must be paid for the full eight hours of sleeping time, however.

In this case, Andryeyeva v. New York Health Care, Inc., the Court of Appeals consolidated the two appellate division cases to determine if those rulings erroneously disregarded the DOL’s interpretation of the wage order. The high court held that the Department of Labor’s knowledge of labor laws governing the home health care industry and its expertise in handling labor law violations was not afforded adequate deference by the lower courts. The high court remanded both cases for further proceedings to resolve other claims.

Nonetheless, the Court of Appeals also reiterated that any violation of the 13-hour rule, such as not allowing the full 5 hours of sleep or 3 meal breaks, negates the rule and requires a home health aide to be paid for the entire 24 hour shift. In any event, many observers believe this is a win for the home health industry, which faced a potential wave of class action wage and claims had the Court of Appeals overturned the DOL’s 13-hour rule.

The argument is that many home healthcare providers would have been forced into bankruptcy, causing a disruption in home care services for the elderly. Given that the majority of such services are covered by Medicaid, the additional labor costs for paying home health aides for 24 hours would have further strained the healthcare system.

The Takeaway

At the end of the day, home health aides rarely, if ever, have 5 hours of uninterrupted sleep. Their clients typically need attention around the clock, requiring these workers to wake up and care for them. At this juncture, the DOL’s rule is in effect, even though it does not adequately distinguish between “live in” and “residential” home health aides, which means the potential for violations of the 13-hour rule may lead to additional legal action and court intervention. In the meantime, if you believe your rights as a home health aide under New York labor law have been violated, you should consult an experienced employment law attorney.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.