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New York adopts emergency rules on home care workers’ hours

The New York State Department of Labor has adopted emergency regulations to amend the state’s minimum wage orders to clarify that hours worked may exclude meal and sleep times for home care aides who work shifts of 24 hours or more (New York State Register, Vol. 43, October 25, 2017)

The Department of Labor considers the emergency regulation necessary to preserve the status quo, prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home, in the wake of recent State Appellate Court decisions that treat meal periods and sleep time by home care aides who work shifts of 24 hours or more as hours worked for purpose of state (but not federal) minimum wage. (Tokhtaman v. Human Care, LLC, No. 3671 151268/16, 2017 NY Slip Op 02759 (1st Dept. Apr. 11, 2017), motion to reargue and for leave to appeal denied, 2017 NY Slip Op 82713(U), (1st Dept. Aug. 15, 2017); Andryeyeva v. New York Health Care, Inc., 2017 NY Slip Op 06421, (2nd Dept. Sept. 13, 2017); and Moreno v. Future Care Health Servs., Inc., 2017 NY Slip Op 06439, 2nd Dept. Sept. 13, 2017)).

As a result of these decisions, home care agencies may cease to provide such aides, threatening continued operation of the industry, according to the Labor Department. Because the decisions relied on the Commissioner’s regulation, and rejected a Department’s opinion letters as inconsistent with that regulation, the emergency adoption amends the relevant regulations to codify the Commissioner’s long-standing and consistent interpretation that such meal periods and sleep times do not constitute hours worked for purposes of minimum wage and overtime requirements.

Minimum Wage Order for Miscellaneous Industries and Occupations, 12 NYCRR Parts 142 and 143, are amended effective October 6, 2017. These emergency regulations expire on January 3, 2018.