Five home care aides and two workers’ advocacy groups are challenging the New York Department of Labor’s emergency regulation designed to reinforce a long-standing practice of paying home care aides for 13 hours during a 24-hour shift.
The Chinese Staff and Workers Association and National Mobilization Against Sweatshops joined the five aides in filing the petition in New York Supreme Court, according to attorney Angelo Spinola, a shareholder with Atlanta-based Littler Mendelson.
Many New York home care agencies had been paying live-in caregivers for 13 hours a day, excluding eight hours of sleep and three hours of breaks. Agencies believed the approach — which was based on a 2010 opinion letter from the New York State Department of Labor (DOL) — was compliant. But an appellate court ruling found the practice did not comply with the applicable state wage order.
The DOL quickly responded with an emergency order in October 2017. The order noted that the existing 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 that may otherwise be excluded from hours worked under the Fair Labor Standards Act (FLSA).
 DOL has scheduled a public hearing on July 11, 2018 to make the emergency regulation permanent, Spinola says.
The court agreed in March 2018 to consider the issue about wages prior to October 2017. Arguments are expected to take place in the fall with a decision to follow sometime after that, Spinola says.