Court Holds that New York Home Care Agencies Must Pay Non-Residential Employees for Entire 24 Hours of On-Call Shifts

On April 11, 2017, a New York State appeals court ruled that 24-hour home care workers must be paid for all 24 hours they work or are on call, if they are not “residential” employees. According to New York’s Department of Labor regulations, minimum wage must be paid for each hour an employee is required to be available for work, except for “residential employees”, who live on the employer’s premises.  Residential employees are not entitled to pay for normal sleeping hours or any hours when they may leave the residence. In the case, Tokhtama v. Human Care, LLC, 2017 NY Slip Op 02759, the Court held that the plaintiff sufficiently alleged she is not a residential employee as a matter of law and therefore entitled to pay beyond a residential employee’s 13 hour shift.

If the court ruling is upheld, home care agencies in New York may face liability for back pay owed to many non-residential employees who were not paid for portions of their 24 hour on-call shifts.  If the decision is followed elsewhere, home care agencies nationwide may be exposed to similar claims for denial of pay.