On April 11, 2017, in Tokhtaman v. Human Care, LLC, 2017 N.Y. App. Div. LEXIS 2703, 2017 NY Slip Op 02759 (1st Dept. 2017), the New York State Appellate Division, First Department, held that home health care attendants who work 24-hour shifts must be compensated for all 24 hours if they are “nonresidential” employees – that is, they do not exclusively reside in the premises of the employer.

In this case, Plaintiff, who was employed by Defendants’ home care agency as a home health care attendant, alleged that Defendants failed to pay her minimum wage, failed to pay her overtime, and failed to pay her “spread of hours” compensation because Defendants only paid her for 13 hours of her 24-hour shift. Defendants thereafter moved to dismiss on the grounds that a March 11, 2010 New York State Department of Labor (“NYDOL”) Opinion Letter stated that employers of 24-hour home care attendants are permitted to pay their employees for only 13 hours of a 24-hour shift, provided the employee is afforded at least eight hours of sleep, five of which are uninterrupted, and three uninterrupted hours for meals.

The trial court denied the motion to dismiss and held that the “13-hour rule” only applies to residential employees (those who exclusively reside in the home of their employer). Because Plaintiff had a separate residence and was employed by Defendants (home care agency), not the client she was taking care of, the “13-hour rule” did not apply to her.

Defendants appealed to the First Department, which affirmed and held that the NYDOL’s “13-hour rule” was inconsistent with the NYDOL’s own regulation which “provides that the 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.’” More specifically, the First Department found that the NYDOL’s “13-hour rule” was inconsistent with its own regulation because the “13-hour rule” failed “to distinguish between ‘residential’ and ‘nonresidential’ employees … As such, if plaintiff can demonstrate that she is a nonresidential employee, she may recover unpaid wages for the hours worked in excess of 13 hours a day.”

If your employer is failing to compensate you for all the hours that you worked, it is important to contact a New York employment attorney as soon as possible so that you can recover all your unpaid wages.

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