Private Duty

New York ‘13-hour standard’ for live-in caregivers once again acceptable

After more than a year of legal back-and-forth, home care agencies in New York can rest easy in the longstanding practice of paying live-in caregivers in the state for 13 hours a day — excluding sleep and rest periods.

On March 26, the New York Court of Appeals ruled agencies could continue to pay caregivers for 13 hours of a 24-hour shift as long as those caregivers receive three hours for meal breaks and eight hours for sleep breaks, including five uninterrupted hours for sleep.

The issue is one that providers of live-in care in other states should take note of, industry experts say. Any state with wage-and-hour laws differing from those at the federal level could be open to similar challenges in the future.

Confusion in New York began in September 2017 when a lower appellate court in the state ruled non-residential live-in home care aides should be paid for 24 hours of care in a day because they were not allowed to leave clients’ homes during break and sleep periods.

Many New York agencies had been paying live-in caregivers for 13 hours a day, believing the approach — which was based on a 2010 opinion letter from the New York State Department of Labor (DOL) — was compliant. But the lower appellate court ruling found the practice didn’t comply with the applicable state wage order.

The state DOL stood by its initial interpretation, issuing an emergency order in October 2017 to clarify and reaffirm the stance. But in September 2018, New York’s Supreme Court ruled the DOL emergency order to be invalid, leaving agencies in limbo until the most recent court ruling.

Had the most recent court decision not deferred to the New York DOL and restored the “13-hour standard” for paying live-in caregivers, agencies would have faced significant liability, notes attorney Angelo Spinola, shareholder with Atlanta-based Littler Mendelson.

Based on failure to pay 11 hours of overtime per shift going back six years, New York agencies would have been open to billions in potential liability, Spinola says.

More than 150 lawsuits already had been filed against agencies on behalf of live-in caregivers. While these cases likely will not move forward as class action, they won’t go away entirely.

Agencies involved in these cases still will need to provide evidence that the caregivers took the appropriate breaks based on the 13-hour standard.

“Some will be vulnerable because they don’t have proper timekeeping in place,” Spinola says.

Non-New York agencies should take note

Agencies outside New York should let this issue serve as a valuable reminder to get familiar with their own state laws.

If your state minimum wage or labor laws differ from federal law, there could be additional compliance questions, Spinola says.

In California, for instance, the state wage order has not codified the ability to deduct sleep time for personal attendants and caregivers even though it’s been the common interpretation since 2015, Spinola says.

Follow these live-in best practices

Put agreements in place for live-in caregivers. Detail the hours the caregiver is expected to work as well as the hours when the caregiver is expected to receive meal breaks and sleep time, recommends Joseph Maddaloni Jr., partner at Schenck, Price, Smith & King, LLP in Florham Park, N.J.

  • Include in the agreement that the caregiver is expected to have private quarters, Spinola adds. And in that agreement, outline the process for reporting the absence of these elements.

Have the client sign the same agreement or a separate agreement that also outlines these requirements, Spinola suggests. Ensure clients agree to meal and sleep periods and acknowledge these as off-duty time when caregivers are not to be interrupted. This provides a mutual understanding of the parameters as well as important documentation of that understanding.

  • Maintain appropriate timekeeping. Caregivers need to provide and approve time records through telephony, a mobile app or on paper, Spinola says. Caregivers need to confirm when they began work, when they took a break and when they took their sleep time.
  • If the caregiver works during designated sleep or break periods, that time needs to be tracked. Make sure your procedure is clear to caregivers and that they understand how to report any interruptions.

Manage client expectations. Make the caregiver’s schedule clear to the client and explain the cost involved in missing break times. These steps can help manage client expectations for caregiver availability, making it easier for caregivers to step away for breaks. Email – Kirsten Dize