New York labor law generally requires that non-exempt workers – those falling outside of management type positions – have to be paid overtime wages for hours beyond 40 per week. This makes sense for a typical hourly worker – not that violations don't occur in those cases. The home health worker presents a different problem.
Many home health aides or home health workers in New York work in-home shifts, which include 24 hour overnight shifts. This means that they may work a shift that have thirteen hours of work together with eight hours of sleep (five of which would be “uninterrupted”). Previously the law has not required that home health aides be paid for the hours during which they were asleep.
This may be changing.
At least one court in New York has now determined that non-resident aide workers (those who do not provide “live in” assistance) were not covered by the 13-hour rule and that they were entitled to payment for hours worked sleeping. This constitutes a major shift.
These cases will be the subject of extensive litigation in the coming years. The bottom line, however, is that if you are a home health aide you must be aware of your rights under both the Fair Labor Standards Act and the New York State Labor law.
Often employers skimp on payments to home health aides, by cutting hours, refusing to pay for “sleep” time despite the fact that the home health aide was not in fact asleep during the hours, or otherwise attempting to cut hours or avoid overtime whenever possible.
The good news for New York Home Health aides is that the Fair Labor Standards Act and New York Labor Law provide significant protection to employees in the event of an employer violation. These protections include payment of double damages, attorneys fees and damages in the event of employer retaliation following a report of a violation (this happens very frequently).
If you are a home health aide or other health care worker who believes you are owed unpaid wages give us a call.