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New York 7th Day Overtime – Paying It Right

Ever heard the old adage “variety is the spice of life”? Well, the New York State Department of Labor has its own take on it – wage and hour compliance is the spice of employment law. Paying employees right in New York means understanding the nuances of a varied assortment of laws and interpretations: spread of hours, split shift, the 13-hour rule, wage parity, overtime after 40 or 44 hours, and 7th day overtime.

Home health care agencies and other employers of “domestic workers” have a real need to be familiar with 7th day overtime requirements – or risk finding themselves hit hard in a state labor audit.

So, let’s explore who’s entitled to 7th day overtime and how the extra pay is calculated.

Who is Eligible for 7th Day Overtime in New York?

Before we get into eligibility for extra pay, let’s start with New York’s basic position. Section 161 of the New York State Labor Law provides that employers in a whole slew of industries “shall . . . allow every person employed . . . at least twenty-four consecutive hours of rest in any calendar week.”

There you have it: the basic position of the New York DOL – generally, 7th day work is prohibited.

When it comes to employees who work in private homes, though, the Domestic Workers’ Bill of Rights kicks in. Household employees (aka domestic workers) CAN work 7 days in a row, but if they do, they get overtime pay for EVERY HOUR worked on that 7th day. And you as the employer have to display this poster properly – in a conspicuous place that your employees can see.

Does this requirement apply to a home health care agency that sends aides to patients’ homes? Well, it depends (Don’t you love these kinds of answers?). DOL guidance tells aides that:

“If you are employed by an agency to provide ‘companionship services,’ such as caring for an elderly person, the rules about overtime and a required day of rest do not apply to you.”

Of course, that just begs the question about what “companionship services” are.  If the aide washes the patient’s breakfast dishes – does he lose his status as a “companion”? What if she does the patient’s laundry? Or cooks lunch?

Ah, the stuff that legal opinions and lawsuits are made of. DOL does not provide cut and dried definitions, so at Viventium, we leave the parsing of who is providing companionship services (not entitled to 7th day overtime) and who is not providing companionship services (entitled to 7th day overtime) to your legal counsel.

So, here’s how it works: You indicate which aides are classified as “non-companion” and which as “companion” and Viventium calculates 7th day pay accordingly.

That’s the rundown on eligibility. Let’s move on to the numbers.

How is 7th Day Pay Calculated?

If covered domestic workers work 7 consecutive days during a calendar week (Sunday through Saturday), all hours worked on the 7th day are paid at one-and-a-half times the regular rate, assuming they haven’t worked more than 40 hours in their workweek.

Example 1: Alexander, an aide performing non-companionship services, works in a patient’s home for 2 hours, Sunday through Friday. On Saturday, he works 12 hours. Those 12 hours are paid at time-and-one-half of Alexander’s regular rate, even though he has not exceeded 40 hours in his workweek.

If covered domestic workers work 7 consecutive days during a calendar week AND exceed 40 hours in their workweek, then the hours over 40 are paid at double time (2 times their regular rate).

Example 2: Alexandra, an aide performing non-companionship services, works in a patient’s home for 6 hours, Sunday through Friday. On Saturday, she works another 6 hours. Since she worked 36 hours before her 7th day, the 6 hours worked on her 7th day are divided into 2 categories. The first 4, that bring her to 40 hours in her workweek, are paid at time-and-one-half. The remaining 2 hours, which exceed 40 hours in her workweek, are paid at double time.

It’s important to note that all this talk about 7th days references the 7th calendar day in a week, meaning Saturday. Only consecutive work from Sunday through Saturday triggers 7th day overtime requirements. At the same time, New York labor law follows federal law in allowing employers to designate their “workweek” – a 7 consecutive day period that could start on any day of the week. An employee who works 7 consecutive days in a workweek, but not in a calendar week, is not entitled to any 7th day pay.

Confused? Let’s try another example:

Example 3: Alexi, an aide performing non-companionship services, has a designated workweek of Tuesday through Monday. Here are the hours he worked for 2 calendar weeks:

Sun Mon Tues Wed Thurs Fri Sat
0 0 6 6 6 6 6
Sun Mon Tues Wed Thurs Fri Sat
6 6 6 6 6 6 0

Thus, in Alexi’s workweek (Tuesday through Monday), he works 7 consecutive days and a total of 42 hours. Alexi is NOT entitled to 7th day overtime pay for his work on Monday because it’s the 7th consecutive day of his WORKWEEK, not of the calendar week. However, he is entitled to 2 hours of overtime pay at time-and-a-half of his regular rate because he worked 42 hours during his workweek.

Worried about how you’re going to get this interaction between workweek and calendar week right? In this blog, we gave you 3 examples, but you can imagine the headache in tracking this for 25, 100, or 250 caregivers!

If you’re with Viventium, you can relax. That’s because at Viventium, we speak your language, we get the nuances in the variety of New York’s labor laws – and when it comes to 7th day overtime – we give you the tools to pay it right.

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