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New York Court of Appeals Upholds Thirteen Hour Rule for Home Health Aide Pay

On March 26, 2019, the New York Court of Appeals upheld the state Department of Labor’s (the “DOL”) so-called “13-hour rule” governing payment of home health care aides that work 24 hour shifts. In a closely-watched decision with significant ramifications for the state’s home health industry,  New York’s highest court reversed two 2017 appellate decisions that had overturned the DOL’s 13-hour rule and caused substantial uncertainty for home health providers throughout the state.  In short, the New York Court of Appeals confirmed that New York home health care aides may be paid for 13 hours of a 24 hour shift, as long as the aides are given eight hours of sleep time (with five of those being uninterrupted hours) and three hours of meal breaks.

As background, in New York home health aides that work 24 hour shifts have been treated as “live-in employees” for purposes of New York’s Minimum Wage Order regulation (the “Wage Order”). Under the DOL’s interpretation of the Wage Order, employers were not required to pay an aide for each hour of a 24 hour shift as long as the aide was given up to eight hours of sleep time (with at least five of those hours uninterrupted) and three hours for meal breaks. The DOL most recently affirmed its interpretation via an opinion letter issued in March 2010, which states in pertinent part that “it is the opinion and policy of this Department that live-in employees must be paid not less than for 13 hours per 24 hour period provided that they are afforded at least eight hours for sleep and actually receive five hours of uninterrupted sleep, and that they are afforded three hours for meals.” This recognition of the 13-hour rule for live-in employees was consistent with positions taken by the DOL in previous decades.

In recent years a number of home health aides have brought class action suits against employers seeking to challenge DOL’s interpretation of the Wage Order, and therefore seeking payment for all 24 hours of a live-in shift. In 2017, courts in the First and Second Departments of the New York Appellate Division affirmed trial court decisions overturning DOL’s interpretation of the Wage Order.  In Andryeyeva v. New York Health Care, Inc., the Second Department of the Appellate Division held that DOL’s interpretation of the Wage Order was “neither rational nor reasonable, because it conflicts with the plain language of the Wage Order.” In support of its determination, the Second Department noted that live-in employees were required to be present in patients’ homes and perform services as needed, and therefore were “available for work” at all times, regardless of sleep or meal breaks. Similarly, in Moreno v. Future Care Health Services, Inc., the Second Department held that the DOL’s 13-hour rule “conflicts with the plain meaning” of the Wage Order, and therefore live-in aides were entitled to be paid for every hour of a 24 hour shift. And the First Department held in Tokhtaman v. Human Care, LLC that the DOL’s 13-hour rule conflicted with the plain meaning of the Wage Order.

In response to the appellate decisions overturning the 13-hour rule, suits alleging violations of the Wage Order seeking back-pay and other damages have been filed against many home health providers in New York, potentially exposing the industry to extensive financial liabilities.  In this case, the New York Court of Appeals consolidated the Andryeyeva and Moreno cases to determine in part if the Appellate Division “erroneously disregarded DOL’s interpretation” of the Wage Order. In its decision, the Court of Appeals held that the DOL’s interpretation of the Wage Order does not conflict with the “plain language” of the Wage Order “nor is it an irrational or unreasonable construction of the Wage Order” as applied to home health aides working 24 hour shifts. The Court characterized the DOL’s interpretation as reflecting the DOL’s “specialized knowledge of labor law’s evolving application to domestic workers and the home health care industry [and] expertise in handling labor law violations.” In reaching its decision upholding the DOL’s interpretation, the Court noted that “this interpretation of the Wage Order is similar to the federal government’s guidance on the minimum compensable hours for 24-hour shift employees under the Fair Labor Standards Act.”

The Court ultimately concluded that “the Appellate Division failed to afford adequate deference to DOL’s interpretation of the Wage Order” and reversed the orders of the Appellate Division. In accordance with its holding, the Court remanded the Andryeyeva case back to the trial court, and the Moreno case back to the Appellate Division, to consider whether class certification is proper under New York law and the DOL’s 13-hour rule for purposes of the plaintiffs’ remaining claims concerning labor law violations.

Importantly, the Court reiterated that under the  DOL’s interpretation, any violation by an employer of the 13-hour rule (e.g., allowing only four hours 59 minutes of uninterrupted sleep) negates applicability of the 13-hour rule and mandates payment for the entire 24 hour shift. While the decision is a significant development for the state’s home health industry, litigation based on compliance with the 13-hour rule will likely continue. Accordingly, home health employers may wish to evaluate their pay practices to ensure compliance.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.


About this Author

Conor Duffy Cybersecurity Attorney

Conor Duffy is a member of the firm's Health Law Group and its Data Privacy + Cybersecurity Team. He advises hospitals, physician groups, community providers, and other health care entities on general corporate matters and health law issues. He also counsels clients on what measures are needed to safeguard data and patient information.


Conor provides legal counsel to health care clients on various regulatory matters, such as Medicare and Medicaid program compliance, federal fraud and abuse laws, and the Emergency Medical Treatment & Labor Act...

Leslie Levinson Health Business Attorney

Leslie Levinson is co-chair of the firm's Transactional Health Law Group and a member of both the Health Law and Business Transaction Groups. He has represented private and public businesses throughout his more than 30-year career. Although Les maintains an active business law practice, he concentrates on the transactional, regulatory, and compliance representation of health care and life science clients, including home care and hospice companies, physician practices, hospitals, information technology and medical device companies, health care equipment providers, and health care investors and lenders. He brings a proactive approach to problem-solving. He assists clients by anticipating issues and implementing creative and cost-effective strategies and solutions.


Les has extensive experience in both health care and life science–related and non–health care industry transactions. He has completed more than 300 mergers and acquisitions and financing transactions. 

Mergers and Acquisitions

In his transactional practice, Les represents health care, life science, corporate and private equity clients, and other public and privately owned companies in a wide range of domestic and cross-border merger and acquisition transactions, including leveraged buyouts. He advises buyers and sellers on structuring transactions and negotiating acquisition and financing agreements.

Venture Capital and Equity Financings

Les counsels emerging, high-growth companies and entrepreneurs in capital raise transactions, including advice in connection with investment purchase agreements, convertible notes, charter documents, stockholder agreements, and operating agreements.

General Corporate Matters

Les also maintains an active corporate and business law practice, with an emphasis on transactional matters, including M&A for both public and private companies, securities matters, credit and finance transactions, restructurings and workouts, commercial and business agreements of all kinds, and business counseling. He regularly counsels boards and board committees, and he has served and continues to serve as corporate secretary to public and private companies.


Les provides counsel to health care providers on federal and state licensure change of control, Medicare and Medicaid fraud and abuse, compliance with the Stark law, false claims, licensure, government investigations, physician recruitment, reimbursement, privacy of medical information, compliance program development, self-disclosures, and general federal and state health care compliance counseling.

Les is a frequent author, speaker, and commentator on health care and business matters as well as a contributor to Robinson+Cole’s health law blog, Health Law Diagnosis. Prior to joining the firm, he was a partner at Edwards Wildman, where he was the chair of the health care practice. Les serves on a number of outside advisory boards, including the National Advisory Board of the Berman Institute on Bioethics at Johns Hopkins University, Bioethics International, and DealZumo.


Case Western Reserve University School of Law 

University of Wisconsin 


  • State of New York