Historically, New York home health care aides have been paid for 13 hours of a 24-hour shift. This previously unchallenged practice, known as the “13-hour rule,” permitted employers of home care aides working 24-hour shifts to pay their employees for 13 hours of a 24-hour shift, provided the employee is afforded eight uninterrupted hours for sleep, and three uninterrupted hours for meals.

However, recent New York State Appellate Division decisions rejected the longstanding 13-hour rule. Andryeyeva v. New York Home Attendant Agency, No. 2013-09087 (App. Div. 2nd Dept. Sept. 13, 2017); Moreno v. Future Care Health Srvs., Inc. No. 2015-06013 (App. Div. 2nd Dept. Sept. 13, 2017). In Andryeyeva and Moreno, the New York State Appellate Division Second Department ruled that non-residential home care aides employed by third-party agencies must be paid for every hour of a 24-hour shift, regardless of whether this time includes sleep and meal break periods.  On April 11, 2017, the Appellate Division, First Department (“First Department”) came to the same conclusion in Tokhtaman v. Human Care, LLC et al., 149 AD3d 476 (1st Dept. 2017).

Thereafter, in October 2017, the NY DOL issued an emergency regulation and supporting statement in the New York State Register, clarifying its policy and interpretation of the NY Labor Law and stating 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 in accordance with federal Fair Labor Standards Act regulations. This emergency regulation reinforced the 13-hour rule, contradicting the Andryeyeva, Moreno and Tokhtaman holdings, which has caused a great amount of confusion in the home health care industry.

Fortunately, on March 7, 2018, the Second Department Appellate Division issued a decision certifying the question to the New York Court of Appeals, which hopefully will provide a final resolution of this matter in New York. We will continue to monitor this matter and will provide updates as they develop.