NY DOL’s order on ‘13-hour standard’ for live-in caregivers ruled invalid

By Home Health Line

A recent New York Supreme Court ruling has further muddied the waters around the practice of paying live-in caregivers in the state for 13 hours a day.

On Sept. 26, the court ruled invalid a New York Department of Labor (DOL) emergency order that was designed to clarify the DOL’s stance on previous DOL guidance. The emergency regulation noted the DOL wage order already in existence shouldn’t be interpreted as requiring home care aides working a 24-hour shift be paid minimum wage for meal periods and sleep times that may otherwise be excluded from hours worked under the Fair Labor Standards Act (FLSA).

“With this decision the home care industry again finds itself in a quandary with court decisions rejecting the NYDOL’s interpretation of its own rules,” a post by members of the legal team at Atlanta-based Littler Mendelson.

The confusion began in September 2017 when a lower appellate court in New York ruled non-residential live-in home health aides should be paid for 24 hours of care in a day because they were not allowed to leave clients’ homes during break and sleep periods.

Many New York agencies had been paying live-in caregivers for 13 hours a day, excluding eight hours of sleep and three hours of breaks. Agencies believed the approach — which was based on a 2010 opinion letter from the New York State Department of Labor (DOL) — was compliant. But the appellate court ruling found the practice did not comply with the applicable state wage order.

In October 2017 the DOL issued the emergency order to clarify its position, and had been renewing that emergency order ever since. The New York Supreme Court ruling shut down the order because the court found no evidence of “immediate necessity, emergency or undue delay,” the ruling states.

But the new court decision does not close the door on the possibility of a permanent amendment, according to the Littler Mendelson post.

The New York DOL held a public hearing in July as a step toward a permanent amendment.

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