Employers of home health care attendants who regularly work 24-hour shifts at clients' homes are allowed to pay those workers an hourly wage for only about half of the time they spend there under certain conditions, the New York Court of Appeals said in a decision Tuesday.

Associate Judge Jenny Rivera wrote in a split decision from the court that an interpretation of a regulation from the state Department of Labor allows those employers to exclude payment from those workers if they're able to sleep an appropriate amount and take meal breaks during their shift.

“DOL's interpretation of its wage order does not conflict with the promulgated language, nor has DOL adopted an irrational or unreasonable construction, and so the Appellate Division erred in rejecting that interpretation,” Rivera wrote.

That's a reversal from a decision on the matter from the Appellate Division, Second Department, which said that since those employees are required to be available for work at a client's home during that time, they should be paid at least a minimum wage for each hour of their shift.

The lawsuit was brought by home health care workers against their employers, who they alleged underpaid them for 24-hour shifts during which they stayed at the client's home. They were seeking to have an interpretation of a decades-old regulation by the state Department of Labor on the payment structure of their work struck down by the court, which declined to do so in its decision.

Those workers also alleged that their employers essentially ignored the state's interpretation of that regulation and illegally declined to pay them when they were required to work through meal breaks and hours when they were scheduled to sleep. Rivera said that, while the court's decision upheld the state's interpretation of the regulation, the specific allegations from those workers shouldn't be ignored.

“Plaintiffs' allegations are disturbing and paint a picture of rampant and unchecked years-long exploitation,” Rivera wrote. “Plaintiffs allege, among other things, that they rarely received required sleep and meal time during 24-hour shifts, were expected and required to attend to patients numerous times each night, and that defendants failed to track actual hours worked or make a serious effort to ensure adequate sleep and meal times, as required by law.”

The litigation was brought by Lilya Andryeyeva and Adriana Moreno, two home health care workers employed by New York Health Care Inc. and Future Care Health Services Inc., respectively.

Andryeyeva was represented by Jason Rozger, a partner at Beranbaum Menken in Manhattan, and Moreno was represented by Michael J.D. Sweeney, a name partner at Getman Sweeney Dunn. Rozger attributed the decision partly to arguments by the DOL, which submitted an amicus brief, or friend of the court filing, in the case.

“The rules of law took a pretty heavy blow. The language of the regulation is perfectly clear that anybody who's required to be ready for work at a moment's notice has to get paid for all the time and two separate unanimous panels of the Appellate Division had no problem seeing that,” Rozger said. “Then once the DOL got involved and brought in information not relevant to the question of what the regulations said, but that it was going to cost the state money … then the Court of Appeals saw fit to reverse.”

They had argued that the DOL misinterpreted a decades-old wage regulation from the agency in a 2010 letter that said their employers didn't have to pay them during meal breaks and when they were scheduled to sleep.

That interpretation came with a few strings attached. Workers could be withheld pay for the eight hours they were scheduled to sleep as long as they were actually able to get in five hours of uninterrupted slumber. The letter also said they didn't have to be paid for three hours of meal breaks if they were actually able to take them. If those conditions aren't met, the employer is required to pay them for each hour of the full 24-hour shift.

That was an interpretation of a wage order from the DOL that home health care workers have fallen under since 1972, according to the decision. That wage order said that a residential employee should not be required to be available to work during their normal sleeping hours or if they're on call during those hours.

Employers of home health care workers had argued that they followed the wage order as it was interpreted by the DOL in 2010. New York Health Care was represented by Sari Kolatch, a partner at Cohen Tauber Spievack & Wagner, and Future Care Health Services was represented by Aaron Schlesinger, a partner at Peckar & Abramson. Both firms are from Manhattan.

Kolatch said they were happy with the decision, which largely deferred to the DOL to set its own interpretation of the decades-old wage order.

“We obviously think the Court of Appeals reached the correct decision in deferring to the DOL's very, very long understanding and interpretation of the wage order,” Kolatch said. “We think them deferring to the DOL is consistent with how the Court of Appeals has always deferred to the DOL's interpretation of their own regulations.”

Schlesinger said in a statement that the decision will support the home health care industry in New York.

“We are of course pleased with the Court's decision,” Schlesinger said. “It further demonstrates the significance of the home health care industry in New York State, and enables patients to receive much needed care in their homes.”

Associate Judge Michael Garcia called the decision “unfair” in a dissenting opinion, in which he said the court incorrectly interpreted the role of home health care workers in relation to the wage order. He argued that because those workers have to be available for work during their entire shift, their average pay over those 24 hours evens out to less than the statewide minimum wage.

“DOL's interpretation of the wage order not only enables this mistreatment of home health care aides, it directly affects their livelihood: with 11 hours of pay deducted from their earnings, home health care aides are paid an hourly rate less than the statewide minimum wage,” Garcia wrote. “Rather than hold DOL accountable, the majority defers.”

Associate Judge Eugene Fahey signed onto the dissent with Garcia. Chief Judge Janet DiFiore and Associate Judges Leslie Stein, Rowan Wilson and Paul Feinman were on the court's opinion with Rivera.

A spokesman from the DOL said the decision affirmed their interpretation of the wage order and urged any workers who are not being paid for hours worked to contact the agency.

“In NYS, every worker must be paid for every hour worked. Through this decision, the NYS Court of Appeals has upheld the DOL's longstanding interpretation of meal and sleep time regulations, recognizing that this approach protects workers by paying them when their meal and sleep breaks are interrupted,” the spokesman said. “Workers in these industries who are not being paid for all hours worked should contact us at 1-888-NYSDOL.”

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