Andryeyeva v. N.Y. Health Care, Inc., 14309/2011

• Decision Date: 16 September 2014
• Docket Number: 14309/2011
• Citation: 2014 N.Y. Slip Op. 24269,45 Misc.3d 820,994 N.Y.S.2d 278
• Court: New York Supreme Court
• Parties: Lilya ANDRYEYEVA and Marina Odrus, individually and on behalf of all others similarly situated, Plaintiffs, v. NEW YORK HEALTH CARE, INC., d/b/a New York Home Attendant Agency and Murray Englard, Defendants.

45 Misc.3d 820

994 N.Y.S.2d 278

2014 N.Y. Slip Op. 24269

Lilya ANDRYEYEVA and Marina Odrus, individually and on behalf of all others similarly situated, Plaintiffs

v.NEW YORK HEALTH CARE, INC., d/b/a New York Home Attendant Agency and Murray Englard, Defendants.

14309/2011

Supreme Court, Kings County, New York.

Sept. 16, 2014.

Jason Rozger, Esq., Jennifer Smith, Esq., Beranbaum Menken LLP, New York, for Plaintiff.

Sari Kolatch, Esq., Cohen Tauber Spievack & Wagner P.C., New York, for Defendants.

Opinion

CAROLYN E. DEMAREST, J.

In this putative class action by plaintiffs Lilya Andryeyeva (“Andryeyeva”) and Marina Odrus (“Odrus”), individually and on behalf of all others similarly situated (collectively, “plaintiffs”), plaintiffs bring this renewed motion pursuant to CPLR §§ 901 and 902 to certify this case as a class action “consisting of a class of home attendants who worked 24–hour shifts for defendants” New York Health Care, Inc. (“NYHC”), New York Home Attendant Agency (“NYHAA”), and Murray Englard (“Englard”) (collectively, “defendants”) “between the dates of June 22, 2008 and the date defendants cease, or are enjoined from, not paying those individuals the minimum, overtime, and spread of hours wages required by New York Labor Law and regulations”.¹ Plaintiffs also move pursuant to CPLR § 904 authorizing notice of the action to the putative class by first class mail. Defendants oppose such relief claiming that plaintiffs have failed to meet the statutory criteria for certification of such class, primarily because the determination of whether a putative class member even has a claim requires a fact-intensive inquiry into whether the home attendant actually received eight hours of sleep time, at least five uninterrupted hours of sleep, and three hours for meals during each 24–hour shift.

This is the second class certification motion in this case. In a decision and order dated February 19, 2013, this Court denied plaintiffs' class certification motion without prejudice and ruled that limited discovery must be conducted in order to determine whether the requirements of CPLR § 901 have been met and to assess the considerations listed in CPLR § 902. Plaintiffs have since obtained payroll records covering the proposed class for the proposed period and plaintiffs' analysis has identified 1,063 home attendants who worked 24–hour shifts who plaintiffs contend would be part of the putative class.

BACKGROUND

NYHC is a New York for-profit corporation and licensed home care agency that provides home care services under contract to managed care organizations (“MCOs”), private parties, and other entities. NYHC created NYHAA to administer a contract that NYHC entered into with the New York City Human Resources Administration (“HRA”) to provide home attendant services to Medicaid-eligible individuals between November 2001 and February 2011. Plaintiffs are home attendants employed by the defendants to provide services to homebound, elderly, and disabled clients. Plaintiffs' duties included: personal care services, such as assistance with walking, bathing, dressing

, personal grooming, meal preparation, feeding and toileting; heavy and light cleaning, such as vacuuming, mopping, dusting, cleaning windows, cleaning bathrooms, doing laundry and taking out garbage; shopping; running errands; and escorting clients. Plaintiffs worked a number of 24–hour shifts during their employment, and as many as five such shifts back to back in a week. When working these 24–hour shifts, plaintiffs were required to stay overnight at the residences of defendants' clients so as to be available to provide assistance throughout the night, but do not “live” in the home of their employer's client, the person to whom their services are rendered.² Home attendants working 24–hour shifts are not permitted to leave the client at any time.

Plaintiffs allege three violations of New York Labor Law, including: failure to pay the statutory minimum wage in violation of New York Labor Law (“Labor Law”) § 652 and 12 NYCRR 142–2.1 ; failure to pay one and a half times the basic minimum hourly rate for all hours worked in excess of forty per work week in violation of Labor Law § 650 et seq. and 12 NYCRR 142–2.2³ ; and failure to pay the “spread of hours” premium as required by 12 NYCRR § 142–2.4. For a 24–hour shift, defendants acknowledge they paid home attendants an hourly rate for only 12 daytime hours plus a flat rate for the 12 nighttime hours. Payroll records for plaintiff Andryeyeva, for example, show that when she worked one 24–hour shift, she was paid $156 gross, or $6.50 an hour, and that she was paid $325 or less for two 24–hour shifts, or $6.77 per hour, and $495.60, or $6.88 per hour, when she worked three 24–hour shifts. Andryeyeva's payroll records also show that only twelve hours out of each 24–hour shift were counted towards her overtime pay.

Plaintiffs contend that defendants' policy of paying home attendants for 12 hours at their regular rate of pay, plus a flat rate for their nighttime hours, violates the Labor Law because home attendants are entitled to be paid at least the minimum wage for each hour of a 24–hour shift, plus one and a half times minimum wage for any hours beyond forty per week. Plaintiffs argue that home attendants were not paid the statutorily required overtime rate pursuant to 12 NYCRR 142–2.2 and that they were not paid the “spread of hours” premium of one additional hour at the minimum wage rate for the days in which they worked over 10 hours, in violation of 12 NYCRR § 142–2.4. From the beginning of the class period through July 23, 2009, the minimum wage rate was $7.15 (12 NYCRR § 142–2.1 ). According to plaintiffs, a home attendant working one 24–hour shift in a week should have been paid at least $178.75, consisting of 24 hours at the minimum wage rate, plus $7.15 for spread of hours pay. A home attendant working two 24–hour shifts should have been paid at least $386.10, consisting of 40 regular hours at the minimum wage rate, 8 overtime hours at one and a half times the minimum wage rate, and $14.30 in spread of hours pay. When the minimum wage rate increased to $7.25 after July 23, 2009, plaintiffs assert that home attendants should have been paid at least $181.15 for one 24–hour shift and at least $391.30 for two 24–hour shifts. Plaintiffs argue that, based on defendants' production of payroll records, all home attendants working 24–hour shifts were paid less than the minimum hourly wage.

Defendants argue that because putative class members were afforded eight hours for sleep and three hours for meals, these eleven hours may be excluded from their pay. According to defendants, putative class members were paid at least the minimum wage based on the minimum wage order (12 NYCRR § 142–2.1 ) (the “Wage Order”) and the New York State Department of Labor (DOL) interpretation of this statute. Defendants claim that for the period that the minimum wage was $7.15, NYHC was only required to pay home attendants at least $100.10 for a single 24–hour shift, consisting of 13 hours at the minimum wage rate, plus $7.15 in spread of hours pay.⁴ When the minimum wage increased to $7.25, defendants claim that NYHC was only required to pay home attendants at least $101.50 for a single 24–hour shift, consisting of 13 hours at the minimum wage rate, plus $7.25 in spread of hours pay.

Defendants' position is that all putative class members employed by NYHC were paid according to industry standards and the industry's interpretation of the Wage Order. Defendants further assert that all putative class members who worked under the NYHAA name pursuant to the contract with HRA were paid at a level comparable to that offered by not-for-profit home care agencies' collective bargaining agreements, and that this requirement was incorporated into the HRA contract. Defendants also state that wages paid to NYHC's home attendants are set, in part, by contracts with private health services agencies or local departments of health, which often provide for the number of hours for which a home attendant working a 24–hour shift will be paid. Relying on several opinion letters issued by the DOL, defendants contend that NYHC is only required to pay a home attendant at the minimum wage rate for 13 out of the 24 hours of a 24–hour shift and that eight hours for sleep time and three hours for meal time may be excluded. According to the affidavit of Karen Parker Morris, the Director of Patient Services for NYHC, sworn on March 17, 2014, home attendants working 24–hour shifts were entitled to eight hours of sleep and were entitled to take meal breaks (Morris Aff. ¶ 6). Defendants state that NYHC conducts an orientation for new home attendants in which it explains that home attendants will be paid on the basis of a 12–hour workday and instructs new hires about their entitlement to sleep and meal breaks (id. ). Defendants thus concede that the prospective class members were not paid the minimum wage for each of the 24 hours of a 24–hour shift.

Moreover, it is undisputed that the prospective class members were credited with only twelve of the 24 hours they worked for purposes of determining overtime.

Defendants contend that because home attendants were afforded eight hours of sleep, five hours of which were to be uninterrupted, and three hours for meal breaks, NYHC is not required to pay the minimum hourly wage for these nighttime hours to the extent that a putative class member actually received this amount of meal and sleep time during a 24–hour shift. According to defendants, home attendants are instructed to notify their employer if they are unable to sleep for at least five uninterrupted hours due to a client's sleep-related problems so that NYHC may arrange for a split shift where two home attendants are with the client for 12 hours each. The crux of defendants' argument is that this case is not suitable for class certification because, in order to determine whether a putative...