The Urban Justice Center has challenged New York’s state Department of Labor (DOL) emergency rule designed to reinforce a long-standing practice of paying for home care aides for 13 hours during a 24-hour shift.
The group made the challenge to the New York State Industrial Board of Appeals, which can review, change or revoke state DOL rules, according to the Home Care Association of New York State.
In September, a New York appellate court ruled live-in home health aides should be paid for 24 hours of care in a day because they were not allowed to leave the clients’ homes during break and sleep periods (PDI 11/17).
Before that ruling, home care providers in New York had been paying live-in caregivers for 13 hours a day, to exclude eight hours of sleep and three hours for breaks. The practice was based on a 2010 opinion letter from the state Department of Labor.
In response, the state Department of Labor amended its wage order effective Oct. 6, 2017 and clarified that the wage order shouldn’t be interpreted as requiring home care aides working a 24-hour shift be paid minimum wage for meal periods and sleep times excluded from hours worked under the Fair Labor Standards Act (FLSA).
The state DOL and Home Care Association of New York State filed responses to the Urban Justice Center challenge in January, supporting the emergency rule and the “13-hour standard.”