On April 11, 2017, in an unprecedented state appellate court decision, the First Department, Appellate Division of the NYS Supreme Court held that “non-residential” home care workers who work 24-hour shifts must be paid for all 24 hours. Tokhtaman v. Human Care, LLC (2017 NY Slip Op 02759). This decision deals a devastating blow to home care agencies who, in reliance on a March 11, 2010 New York State Department of Labor (“NY DOL”) Opinion Letter RO-090169, may have believed that the “13-hour rule” applied to both residential and non-residential employees. The Opinion Letter interpreted the New York Labor Law (“NYLL”) as permitting third-party employers of 24-hour home care attendants to pay their employees for 13 hours of a 24-hour shift, provided the employee is afforded eight hours of sleep, five of which are uninterrupted, and three uninterrupted hours for meals.

However, in the Tokhtaman decision, Justice Carol Robinson Edmead determined that the “13-hour rule” only applies to residential employees, meaning those who exclusively reside in the employer’s/patient’s home. Because the plaintiff in Tokhtaman alleged in her complaint that she had a separate residence and was thus a non-residential employee, she may be able to recover unpaid wages for the hours worked in excess of 13 hours a day. The First Department’s decision is expected to be appealed to the state’s highest court. If upheld on appeal, home care agencies could potentially owe workers an additional 11 hours in unpaid wages, plus overtime, spread of hours pay and liquidated damages for each 24-hour shift worked by non-residential employees in the past 6 years. Unfortunately, this would likely result in a significant reduction in the availability of 24-hour home care in New York.

We will be closely monitoring any subsequent appeal of this decision as well as a case on the same issue, Andryeyeva v. New York Health Care, Inc. (Index No. 14309/2011 (Queens Cty.), pending in the Second Department. Read more in this Politico article.