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Legal Update: New York State Department of Labor Attempts to Clarify Rules on Home Health Aide Pay

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On September 13, 2017, in two separate decisions, the New York Supreme Court Appellate Division, Second Department, determined that the March 11, 2010 Opinion Letter issued by the New York State Department of Labor  was not a reasonable interpretation of the Wage Order and the New York Labor Law as it relates to home health aides.

The issues raised in the appellate decisions relate to whether the home health aides were "live-in" or "non-residential" employees. The decisions could affect whether home health aides who reside in the home of their employer are entitled to be paid for all 24 hours in a day, or for only 13 hours each work day, as long as the home health aide receives at least 8 hours of sleep and 3 hours for meals each day.

Earlier this week, the NYS DOL responded to the Second Department's decisions by amending the Minimum Wage Order for Miscellaneous Industries and Occupations, which covers home health aides. The changes were intended to clarify the rights of home health aides, and now provide that live-in home health aides (those that reside on the premises of their employer) are not required to be paid during normal sleeping hours solely because they are required to be on call, or at any other time when they are free to leave the place of employment. To further clarify this point, the NYS DOL incorporated the federal regulations that interpret the Fair Labor Standards Act, which provide that bona-fide break periods are not compensable time for employees, into the Wage Order.

The amended Wage Order does not bind the Courts, nor does it change the recent appellate decisions on the issue of compensation for live-in home health aides. However, it appears that the NYS DOL is attempting to respond to the Courts' recent opinions, which may impact their interpretation of the law in future cases. We will monitor these cases closely, as the next few months may bring more clarity as the Courts confront and opine on the new Wage Order.

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