Today’s post is brought to HHAeXchange by Yonina F. Shineweather, CPA, and Senior Manager of Compliance Services at Viventium.
When was the last time you worked for 24 hours straight? If you’re like most people, your answer is probably “never.”
When was the last time you paid someone to work for 24 hours straight? Now, that’s beginning to sound like a payroll and compliance question – a very controversial one right now in the home care industry.
The Issue: If you send home health aides to do 24-hour (overnight) shifts in clients’ homes, how many hours do you need to pay them for?
What’s Happened in the Past: For years, home care agencies in New York State have answered this question with a resounding “13!!!” – as long as qualifying sleep and meal times were provided. And by qualifying, they mean that the employee was allowed 8 hours of sleep, 5 of which were uninterrupted, as well as 3 uninterrupted hours for meals. (This assumes we’re not talking about an employee covered by a collective bargaining agreement or employed directly by the patient.)
Where did this so called “13-hour rule” come from, you ask? Well, if you subtract the 8 sleeping hours and 3 eating hours from 24 hours, you get the 13 paid hours. And this is indeed the way that the NYS Department of Labor (NYDOL) has consistently interpreted and enforced the New York Labor Law, dating back to a March 11, 2010 Opinion Letter about its Wage Order (RO-090169) that read:
In interpreting these provisions, it is the opinion and policy of this Department that live-in employees must be paid not less than for thirteen hours per twenty-four-hour period provided that they are afforded at least eight hours for sleep and actually receive five hours of uninterrupted sleep, and that they are afforded three hours for meals.
The Problem: In 2017, three separate New York State Appellate Court decisions derailed the 13-hour rule. (To check them out yourself, see Tokhtaman v. Human Care, LLC, 2017 NY Slip Op 02759 (1st Dept. Apr. 11, 2017); Andryeyeva v. New York Home Attendant Agency, 2017 NY Slip Op 06421 (2d Dept. Sept. 13, 2017); Moreno v. Future Care, 2017 NY Slip Op 06439 (2d Dept. Sept. 13, 2017). Two of the cases have been appealed and are awaiting outcomes.)
They ruled that every one of those 24 hours has to be paid – even those eating and sleeping hours. That was a big downturn for the home care industry. But the New York DOL was not about to make peace with the courts telling it how to interpret its own Wage Orders, and so on October 6, 2017, the DOL issued something called an “emergency amendment.” The amendment clarified that meal periods and sleep times may be excluded from hours worked by home care aides who work a shift of 24 hours or more.
Back on Track? Well, for a while anyway. After that emergency amendment, home care agencies could breathe more easily when they relied on the 13-hour rule – but only for 90 days, because according to the State Administrative Procedure Act (SAPA), emergency regulations expire after 90 days. No fear, said NYDOL, we’re intent on our right to interpret our own Wage Order, and so we’re just going to keep renewing that emergency amendment every 90 days or so until it becomes a permanent amendment.
And renew they did, on January 5, 2018, April 5, 2018, June 3, 2018 and July 30, 2018. In addition, they released proposed rulemaking (LAB-17-18-00005-P) on April 25, 2018 and held a public hearing on July 11, 2018. Two necessary steps in turning these emergency amendments into a permanent one.
Stop the Train! The court system, for its part, wasn’t going to take this kind of circumvention lying down. With home care agencies and their aides beginning to feel like ping pong balls in a table tennis tournament, the court spoke again. On September 26, 2018, the New York Supreme Court (not to be confused with the United States Supreme Court), ruled that the NYDOL’s emergency amendment was – quote – “null, void, and invalid.” There was no emergency after all, the court found; NYDOL had no right to invoke SAPA for emergency rulemaking when there was never any emergency to begin with. Let the court speak:
The record is devoid of any facts upon which to base a finding of “immediate necessity, emergency or undue delay.” A mere need for the monitoring of the home care service industry in light of the Appellate Division rulings and a potential concern about a disruption is not sufficient to justify the use of SAPA’s administrative procedures for emergency rulemaking. It does not constitute a situation where “bad things are happening,”
It’s important to note that the court did not say that NYDOL was not allowed to amend its Wage Order, but rather that it couldn’t do so with an emergency regulation. And DOL is still chugging ahead with its process to turn the 13-hour rule into a permanent amendment.
All Aboard? Despite the court’s pretty strong language about null and void and all that, NYDOL remains steadfast. On September 27, 2018, they renewed the 13-hour rule again, and this newest emergency amendment is in effect until November 18, 2018.
What’s Next: With all this back and forth about the 13-hour rule, home care agencies with 24-hour shifts are best advised to review pay practices with competent legal counsel and HR specialists. It’s a good guess to assume that the NYDOL will eventually codify its interpretation as a permanent amendment to the Wage Order and make the 13-hour rule a certainty. Regardless, Littler Mendelson P.C., a leading labor and employment law firm, has some suggestions for agencies:
- First, be sure to keep good records of employees’ undisturbed sleep and meal times and require aides to certify the accuracy of the time they submit.
- Next, just in case of an employee lawsuit, enter into agreements with your employees that state their compensation terms and ensure that they are given the required number of sleep, uninterrupted sleep, and meal hours.
- And, because of the risk of class action suits, strongly consider implementing an arbitration program with a class action waiver.
So, hold on tight to your seats – the ride’s not over yet.
To learn more about the 24-hour rule, register for Viventium’s home care compliance webinar here.
Yonina F. Shineweather, CPA, is a Senior Manager of Compliance Services at Viventium, a purely cloud-based Payroll and HR (HCM) software company that provides a remarkable user experience and design anyone can use with ease, unbeatable analytics, and insight into your business.