Many home health agencies do not pay their home health aides for the overnight hours of their 24 hour shifts. This is a true hardship for those aides, since the patients they care for, many of whom suffer from dementia, require care throughout the night. Beranbaum Menken has brought several lawsuits challenging this practice, since under New York law, if an employer requires a worker to be in a particular place, and available to work, then that worker must be paid at least the minimum wage for that time, whether working or not. See 12 N.Y.C.R.R. § 142-2.1(b).
In one of those cases, Andryeyeva v. New York Health Care, which is pending in Kings County Supreme Court, Commercial Division, Judge Demarest rejected the employer’s argument that it did not have to pay home attendants for their overnight work so long as they were afforded three uninterrupted hours for meals, and eight hours of sleep, five uninterrupted. Click here for the decision: Decision on NYHC first CC motion Judge Demarest held that “the issue of hours afforded for uninterrupted sleep or meals is irrelevant.” This makes it very likely, in our opinion, that our clients will be able to prevail on their claim for their unpaid overnight minimum wages not just for themselves, but for a class of all home attendants who worked 24 hour shifts for New York Health Care, which formerly did business as New York Home Attendant Agency.