sleeping on the jobCo-authored by Gena B. Usenheimer & Meredith-Anne Berger

Seyfarth Synopsis: A New York appeals court held that home healthcare employees who work overnight shifts are entitled to pay for all hours in a client’s home in a 24-hour period—including sleep and meal periods. The previously accepted interpretation of New York law allowed employers to pay 13 hours for a 24-hour shift so long as specified meal and sleep periods were provided.

Home healthcare agencies may be losing sleep over a recent decision regarding pay for employees working overnight shifts. In Tokhtaman v. Human Care, LLC, the New York State Supreme Court, Appellate Division, First Department (Manhattan and the Bronx), held that a home healthcare employee who was not a residential employee, that is, one “who lives on the premises of the employer,” must be paid for all hours present at a client’s home, including time spent sleeping or on meal periods.

The ruling departs from how New York home healthcare employees had been paid in recent years.

New York Department of Labor regulations provide that minimum wage must be paid for each hour an employee is “required to be available for work at a place prescribed by the employer” except that a “residential employee — one who lives on the premises of the employer” need not be paid “during his or her normal sleeping hours solely because he is required to be on call” or “at any other time when he or she is free to leave the place of employment.”

Though the regulation is silent as to non-residential home healthcare employees working shifts of 24-hours or longer, courts and employers alike previously relied on a 2010 Opinion Letter that offered some relief from this onerous requirement. In particular, the 2010 Opinion Letter instructed that “live-in employees”—whether residential employees or not—could be paid only for 13 hours for a 24-hour shift if the employee was afforded 3 hours for meals, afforded at least 8 hours for sleep, and actually received 5 hours of uninterrupted sleep. In reliance on the 2010 guidance, and parallel federal regulations, employers of home healthcare employees have been paying employees for 13 hours out of a 24-hour shift, rather than for all 24 hours, provided the required meal and sleep periods have been given.

But Tokhtaman said that the 2010 Opinion Letter conflicts with the regulations. Because the letter “fails to distinguish between ‘residential’ and ‘nonresidential’ employees,” the court declined to follow its guidance. Rather, the court applied a strict reading of the regulations and rejected Human Care’s argument that appropriate meal and sleep periods need not be compensated.

Another case to watch on this issue is Andryeyeva v. New York Home Attendant Agency. The trial court in that case certified a class of overnight, non-residential home healthcare workers, rejecting the proposition that as a matter of law, sleep and meal hours may be excluded from the hourly wages of a home attendant who does not reside in the home of his or her client. The decision is currently being appealed. Depending on the outcome of Andryeyeva, this issue may be taken up to the New York Court of Appeals, New York State’s highest court, in the near future for a definitive decision.

We will continue to track these cases as they move through the courts. Stay tuned for the latest developments.