United States: New York State Appellate Court Finds 24-Hour Non-Residential Home Care Attendants Must Be Paid For Sleep And Meal Periods

Last Updated: April 19 2017
Article by Angelo Spinola and Lisa M. Griffith

As Littler reported in March of 2015,1 a New York Supreme Court, Kings County Justice found that sleep and meal periods must not be excluded from the hourly wages of a home attendant who does not reside in the home of his or her client, and certified a class of over 1,000 home care attendants who worked 24-hour shifts. The decision in that case, Andryeyeva v. New York Home Attendant Agency,2 is on appeal to the Appellate Division, Second Department. Littler filed an amicus curiae brief in support of the employer in that case. Oral argument was held on January 9, 2017, and the parties are anxiously awaiting a decision.

However, multiple other lawsuits have been filed against home care agencies since the Supreme Court's decision in Andryeyeva, including Tokhtaman v. Human Care, LLC et al., which was filed in the New York Supreme Court, New York County.3 On April 11, 2017, the Appellate Division, First Department affirmed the Supreme Court's ruling denying Defendant Human Care's motion to dismiss. If the First Department's decision stands, it could have a significant impact on the home care industry and patients who rely on 24-hour home care to stay out of institutions.

Tokhtaman v. Human Care, LLC – Background

In Tokhtaman, the plaintiff alleged that she was owed minimum wage, overtime and "spread of hours" pay because she was paid only 13 hours of a 24-hour shift. Although she was a "live-in" and worked 24-hour shifts, she claimed she did not reside in the home of her employer, and thus the "13-hour" rule did not apply to her. Defendant Human Care filed a motion to dismiss the complaint on the grounds it failed to state a cause of action in reliance on a March 11, 2010 New York State Department of Labor ("NY DOL") Opinion Letter RO-090169, which interpreted the New York Labor Law ("NYLL") as permitting third-party employers of 24-hour home care attendants to pay their employees for 13 hours of a 24-hour shift, provided the employee is afforded eight hours of sleep, five of which are uninterrupted, and three uninterrupted hours for meals.4

In the Tokhtaman decision, Justice Carol Robinson Edmead denied the motion to dismiss on several grounds, including that she believed the March 11, 2010 Opinion Letter's determination that a live-in employee is only required to be paid 13 hours of a 24-hour shift (when the required breaks and sleep is afforded) only applies to residential employees (defined as those who reside in the home of their employer), yet Tokhtaman alleged in her complaint that she was employed by the agency, not the client she was taking care of, and had a separate residence.

Human Care appealed that decision to the First Department and a decision was issued on April 11, 2017 affirming the Supreme Court's decision.

Relevant Provisions of the New York Labor Law

In New York, "[s]leep-in home attendants employed by ... vendor agencies" are not exempt from the NYLL's coverage.5 The NYLL's regulations provide that "the overtime rate shall be paid for each workweek for working time over 40 hours for non-residential employees and 44 hours for residential employees."6 "Residential employee" is defined by the applicable regulations as "one who lives on the premises of the employer."7

The minimum wage order (the "Wage Order") applicable to home attendants provides:

The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer.... However, a residential employee – one who lives on the premises of the employer—shall not be deemed to be permitted to work or required to be available for work (1) during his or her normal sleeping hours solely because he is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment.8

The March 11, 2010 Opinion Letter

On March 11, 2010, the NY DOL issued Opinion Letter RO-0901699 relating to live-in companions that addressed a vendor agency's inquiries regarding wage practices for home care attendants. In the Opinion Letter, the NY DOL's general counsel's office interpreted the minimum wage order so as to confirm that home care attendants working 24-hour shifts who are employed by vendor agencies are considered "non-residential" and must be paid overtime after 40 hours of work per week.

The NY DOL explained that although New York Labor Law Regulation 12 N.Y.C.R.R. § 142-2.1 provides that the minimum wage shall be paid to employees for the time an employee is permitted to work or is required to be available at a place prescribed by the employer, "'residential employees' (those who live on the premises of their employer), are not deemed to be working during normal sleeping hours merely because the employee is 'on call' for those hours or at any time the employee is free to leave the place of employment."10 However, the NY DOL found that whether the attendant is "residential" is only "important for the purposes of determining the number of hours at which overtime is owed (44 for residential employees vs. 40 for non-residential employees)," however, "the Department applies the same test for determining the number of hours worked by all live-in employees."11

The Opinion Letter continued:

In interpreting these provisions, it is the opinion and policy of this Department that live-in employees must be paid not less than for thirteen hours per twenty-four 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. If an aide does not receive five hours of uninterrupted sleep, the eight-hour sleep period exclusion is not applicable and the employee must be paid for all eight hours. Similarly, if the aide is not actually afforded three work-free hours for meals, the three-hour meal period exclusion is not applicable.12

Thus, the NY DOL determined that home care attendants who work 24-hour shifts must only be paid for 13 hours provided the home care attendant was afforded eight hours of sleep, five of which were uninterrupted, and was afforded three uninterrupted hours for meals.

Tokhtaman v. Human Care, LLC – Appellate Division, First Department Decision

In its April 11, 2017 decision, the panel of five Justices of the First Department unanimously affirmed the denial of Defendants' motion to dismiss.13 The First Department held that the Department of Labor Regulations, 12 NYCRR § 142-2.1(b), "provides that the minimum wage must be paid for each hour an employee is 'required to be available for work at a place prescribed by the employer,' except that a 'residential employee – one who lives on the premises of the employer' need not be paid 'during his or her normal sleeping hours solely because he is required to be on call' or 'at any other time when he or she is free to leave the place of employment.'" The First Department held that the March 11, 2010 Department of Labor Opinion Letter which extended this "13-hour rule" to non-residential employees "conflicts with 12 NYCRR 142-2.1(b) insofar as the opinion fails to distinguish between 'residential' and 'nonresidential' employees, and should thus not be followed in this respect. As such, if plaintiff can demonstrate that she is a nonresidential employee, she may recover unpaid wages for the hours worked in excess of 13 hours a day." Likewise, the First Department found Tokhtaman may also be able to prove she is eligible for spread of hours pay because she should have been paid 24-hours for some shifts.

Also notably, the First Department found that Tokhtaman has standing to sue as a third-party beneficiary of the alleged contracts between Human Care and the governmental agencies, which requires Human Care to pay Tokhtaman certain wages pursuant to Public Health Law § 3614-c.


This case will hopefully be appealed to the New York Court of Appeals. If it is upheld, it will likely significantly reduce the availability of 24-hour live-in care in New York State. The six-year statute of limitations on New York Labor Law claims may result in substantial backpay liability, which may lead to many home care agencies closing their doors. Potential liability may be assessed at 11 hours per 24-hour shift, plus overtime, spread of hours pay, and liquidated damages. This may result in the unemployment of many home care attendants, and many disabled or elderly individuals losing their 24-hour care and becoming institutionalized.

Littler has developed several strategies to address lawsuits that may result from this decision and alternative compensation and staffing models designed to better insulate home care providers from the same.14


See Angelo Spinola and Lisa Griffith, New York State Supreme Court Finds 24-Hour Home Care Attendants Must be Paid for Sleep and Meal Periods, Littler Insight (Mar. 25, 2015).

2 45 Misc. 3d 820 (Sup. Ct. Kings County Sept. 16, 2014) (Demarest, J.) (hereinafter "Andryeyeva"). The Andryeyeva  decision is currently pending appeal. 

3 Index No. 151268/2016.

4 This article does not address wage and hour practices where the employees are covered by a collective bargaining agreement or employed directly by the patient.

Severin v. Project OHR, Inc., 2012 U.S. Dist. LEXIS 85705, * 16 (S.D.N.Y. 2012) (citing Settlement Home Care, Inc. v. Indus. Bd. of Appeals of the Dep't of Labor, 151 A.D.2d 580 (2d Dep't 1989)). 

6 12 N.Y.C.R.R. § 142-3.2. 

7 12 N.Y.C.R.R. § 142-2.1.

8 12 NYCRR § 142-2.2.

9 An attorney representing an employer of "Live-In Companions" sent in a "Request for Opinion" to the NY DOL and, in response, the general counsel's office issued an opinion letter.  This was an accepted method of obtaining advice regarding compliance with the NYLL.  However, opinion letters are strictly advice and not law and can become obsolete based on changes in law, rules or regulations.

10 Id. pp. 3-4. 

11 Id. p. 4 (emphasis applied).

12 Id.

13 The First Department has jurisdiction over New York and Bronx counties, while the Second Department has jurisdiction over Nassau, Suffolk and Kings counties.

14 Please contact Littler if you would like to discuss these strategies.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions