Supreme Court to Hear New York Case on Companion Worker Overtime Pay Lawsuit

Under the Federal Labor Standards Act (FLSA), companion workers, employees who provide live-in care for senior citizens, were ineligible for overtime and minimum wage through an exemption in the law. The Second Circuit in the New York case of Coke v. Long Island Care at Home, Ltd., 376 F.3d 118 (2d Cir. 2004)(“Coke I”), held that companion workers hired through third-party agencies were not exempt. Thus agencies providing companion workers would be required to pay minimum wage and overtime to its employees. To date, the Coke ruling is the first and only federal appellate court to rule that such exemption is unavailable to homecare agencies.

The defendants in Coke asked the U.S. Supreme Court to review the 2nd Circuit’s decision. On Jan. 23, 2006, the high court in an interesting procedural development, vacated the judgment and remanded the case back to the 2nd Circuit for further consideration in light of a U.S. Department of Labor’s Wage and Hour Advisory Memorandum No. 2005-1 (Dec. 1, 2005).

Despite the Supreme Court’s remand and the existence of the DOL memorandum, on Aug. 31, 2006, the 2nd Circuit issued an opinion in which it adhered to its original decision invalidating the regulation in question. Coke v. Long Island Care at Home, Ltd., 462 F.3d 48 (2nd Cir. 2006)(“Coke II”).

The Supreme Court on Jan. 5, 2007, decided to hear the case.

In all likelihood this case will follow the Department of Labor’s memorandum holding that home health care agencies are eligible for the FLSA exemption. Thus in all probability New York companion workers will continue to be denied overtime and minimum wage pay.

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Is Mandatory Paid Sick Leave Coming to NJ?

This week in San Francisco a new law took effect requiring paid sick leave for all San Francisco employees. The “Sick Leave Ordinance,” makes San Francisco the first city in the United States to require private-sector employers to provide paid sick leave for its employees.

What’s groundbreaking about this law?

• The law requires one hour of paid sick time for every 30 hours worked adding up to approximately nine sick days a year for full-time employees.

• Employees may use their paid sick leave not only for their own illnesses but to care for family members, including registered domestic partners.

• If employees have no spouse or registered domestic partner, they may use their sick leave to care for an unrelated “designated person,” such as a roommate or neighbor. Employees must be given an opportunity to designate this person once every year.

• The Ordinance prohibits an employer from retaliating against an employee for exercising rights under the Ordinance. Any adverse action taken within 90 days of an employee’s exercise of a right under the Ordinance creates a rebuttable presumption of retaliation by the employer.

New Jersey law makers are considering a mandatory paid sick leave policy of its own. The bill reintroduced by Assemblywoman Sheila Y. Oliver in January 2006, would provide 48 hours of paid time off for each six month period of full-time work. The employee would be able to use the accrued sick time any time during the one year period following the six-month period of accrual. The time could be used for the sickness of employee or family members. If the sick time is foreseeable the employee will have to give 14 day advanced noticed. The time could also be used for vacation or personal holiday leave with 30 days notice to the employer.

This bill has been reintroduced every year since 2003. New Jersey employees will have to wait and see if the legislature follows San Francisco’s lead in enacting this bill. NJ is usually neck in neck with California in terms of employee rights. I wouldn’t be surprised if NJ holds off on this legislation until the true costs and benefits of San Francisco’s law can be analyzed. We must remember that enacting this policy for the state of NJ is much more challenging than enacting this policy for a city.