Overtime laws have many exceptions and exemptions, but even when an employee is indisputably entitled to overtime, disputes may also arise over what, precisely, constitutes “work time” for which the employee is owed compensation. A New York appellate court recently ruled on this question with regard to home care attendants who do not reside with their clients but who work 24-hour shifts. Andryeyeva v. New York Health Care, Inc., 2017 NY Slip Op 6421 (N.Y. App., 2d Dept., Sep. 13, 2017). While the industry standard does not require employers to pay home care attendants for time spent sleeping or eating, the plaintiffs alleged that this practice violated a state regulation regarding non-residential employees. The court ruled that non-residential home care attendants are entitled to pay for sleep and meal periods. Another New York appellate court reached similar findings earlier this year in Tokhtaman v. Human Care, LLC, 2017 NY Slip Op 2759 (N.Y. App., 1st Dept., Apr. 11, 2017). These decisions do not directly affect New Jersey wage and overtime disputes, but they could have some impact in the future.
The Fair Labor Standards Act (FLSA), the New Jersey Wage and Hour Law, and other statutes require employers to pay non-exempt employees time-and-a-half for hours worked in excess of 40 hours in a week. Neither statute provides a specific definition of “hours worked.” The FLSA includes “hours worked” in the section providing definitions. Rather than defining the term, however, it merely notes that time spent performing certain tasks “at the beginning or end of each workday” might not count as “hours worked” if excluding this time is part of a collective bargaining agreement. 29 U.S.C. § 203(o). Unpaid time spent changing into or out of a uniform or other required work clothes is a common basis for overtime claims.
The plaintiffs in Andryeyeva and Tokhtaman provide in-home care to elderly individuals and individuals with disabilities. They do not provide “residential” or “live-in” care, meaning that they have their own separate residences. They often work long shifts, however, lasting 24 hours or longer. During that time, they are often able to sleep and eat meals, but they must remain with or near the client. The question presented in both cases was, essentially, whether sleep and meal time counts as “hours worked.”
A 2010 opinion letter from the New York Department of Labor, RO-090169, affirmed a standard industry practice of paying home care attendants for 13 hours of a 24-hour shift. Unpaid time includes eight hours for sleep and three hours for meals. A state labor regulation known as the “Wage Order,” however, states that employees are entitled to minimum wage for time during which they are “required to be available for work at a place prescribed by the employer,” with an express exemption for “residential employee[s]…who live on the premises of the employer.” 12 NYCRR § 142-2.1(b).
In ruling for the plaintiffs in Andryeyeva, the court noted that they did not reside on the premises where they worked. It held that the Work Order’s minimum wage requirement applies to non-residential caregivers like the plaintiffs during times when they are asleep or eating, since their workplace is not their residence. The Tokhtaman court reached a very similar conclusion.
If you need to speak to a wage law attorney about a dispute in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.
More Blog Posts:
The Rights of Unpaid Volunteers and Interns in New Jersey Employment Law, The New Jersey Employment Law Firm Blog, November 10, 2017
New Jersey Employee Misclassification Lawsuit Cites Obama-Era Overtime Rule, The New Jersey Employment Law Firm Blog, September 8, 2017
Bill Pending in Congress Would Change FLSA Overtime Rules, The New Jersey Employment Law Firm Blog, June 30, 2017