On May 4, 2015, the Hon. David I. Schmidt, Justice of the Supreme Court of the State of New York, Kings County, issued a decision in Adriana Moreno, et al. v. Future Care Health Services, Inc., et al., Index No. 500569/13, denying class certification sought by healthcare workers for a claim against a prior employer, Future Health Care Services, Inc. (“Future Care”). The healthcare workers complained that their pay did not include all hours worked, overtime, spread of hours pay, in-service training, and expenses for uniforms and other work related items. In the decision, Judge Schmidt determined that plaintiffs had not met the requirements of the statute (CPLR 902) for certifying their action as a class action (to apply to all similar workers, even those not named in the suit). It is important to note, however, that the court held that, under the New York Labor Law and a New York Department of Labor (“DOL”) opinion letter dated March 11, 2010, live-in employees such as Home Health Aides (“HHA”) must be paid not less than thirteen hours per 24-hour shift period as long as they are afforded at least eight hours of sleep—five hours of which are uninterrupted—and three hours for meal breaks.

In rendering the decision, Justice Schmidt disagreed with fellow Kings County Supreme Court Justice Carolyn Demarest’s September 16, 2014 decision in Andryeyeva v. New York Health Care, Inc., 45 Misc 3d 820 (Sup Ct, Kings County, September 16, 2014), which held that live-in HHAs are entitled to be paid for every hour of a 24 hour shift because they are essentially on call for the entire 24 hours and thus entitled to be paid for each hour they are present on the premises, regardless of break time spent on meals or sleeping. Justice Schmidt determined that the Andreyeyeva court erred because it did not “pay sufficient deference” to the DOL’s opinion letter.