The 2nd Department Rejects NYSDOL's "13 Hours Rule" For 24-Hour Shift Workers

Date   Sep 15, 2017

Executive Summary. Yesterday, in two long-awaited decisions, the New York State Appellate Division, Second Department ruled that home care workers who worked 24-hour shifts, commonly referred to as “live-in” shifts, were required to be paid for all 24 hours, regardless of the sleep and meal times they were afforded. The two cases are Andryeyeva v. New York Home Attendant Agency and Moreno v. Future Care Health Services, Inc.

Rationale. Both of yesterday’s decisions followed the reasoning of Tokhtaman v. Human Care, LLC, decided by the Appellate Division, First Department earlier this year, rejecting the New York State Department of Labor’s (“NYSDOL”) longstanding opinion that workers could be paid for 13 hours per shift, provided they were afforded at least eight hours for sleep time and three hours for meals (the “13-Hour Rule”). The Second Department determined that the NYSDOL’s 13-Hour Rule was an interpretation that was “neither rational nor reasonable” under New York’s minimum wage law and regulations.

Appeal. The Andreyeyeva, Moreno, and Tokhtaman decisions were all unanimous, so there is no automatic right to appeal to the New York Court of Appeals, New York State’s highest court. However, these three decisions stand in stark contrast to decisions in federal courts in New York in which those courts have deferred to the NYSDOL’s 13-hour Rule, namely Severin v. Project OHR and Bonn-Wittingham v. Project OHR. Indeed, in Bonn-Wittingham, the Court considered and expressly rejected the First Department’s reasoning in Tokhtaman. This split between the state courts and federal courts could provide an avenue for review of this issue by the New York State Court of Appeals.

In the meantime, these three decisions present significant challenges for agencies. Without a different decision or government action, agencies may face enormous backpay liability for all their 24-hour cases worked over the past six years.

What questions do these decisions raise?

1. Who is directly affected by these decisions? Are fiscal intermediaries for CDPAP as well as LHCSAs affected? Are non-profit agencies as well as for-profit agencies affected?

2. Who has ultimate liability for having to pay 24 hours pay for 24 hour shifts for the past six years? Are owners of corporations and LLCs personally liable for unpaid wages and taxes? How can owners protect their personal assets?

3. What legal options exist? If the Second Department refuses, as the First Department did, to allow an appeal, what alternative way exists to bring this issue before the New York Court of Appeals?

4. What do you do with 24-hour shift cases you are currently servicing?

FordHarrison LLP advises and counsels home care agencies and Fiscal Intermediaries under the New York State CDPAP on all issues relating to labor, employment and benefits. If you have any questions regarding this Legal Alert or would like our advice about particular facts and circumstances at your workplace, please contact the authors, Stephen Zweig at, and Philip Davidoff at, or contact any of the firm’s attorneys in its New York City office at (212) 453-5900.