State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.

No. 11 Lilya Andryeyeva, &c., et al., Respondents, v. New York Health Care, Inc., d/b/a New York Home Attendant Agency, et al., Appellants. --------------------------------------------------- No. 12 Adriana Moreno, &c., et al., Respondents, v. Future Care Health Services, Inc., et al., Appellants. Case No. 11: Sari E. Kolatch, for appellants. Jason J. Rozger, for respondents. Home Care Association of New York State, Inc. et al.; Consumer Directed Personal Assistance Association of New York State, Inc.; Home Care Association of America et al.; Greater New York Hospital Association, et al.; Sanford Heisler Sharp, LLP; Community Development Project, et al.; New York State Association of Health Care Providers, Inc.; New York State Department of Labor; National Center for Law and Economic Justice, amici curiae. Case No. 12: Aaron C. Schlesinger, for appellants. Michael J. D. Sweeney, for respondents. Sanford Heisler Sharp, LLP; Greater New York Hospital Association, et al.; Community Development Project, et al.; New York State Department of Labor, amici curiae. RIVERA, J.: The common issue presented in these joint appeals is whether, pursuant to the New York State Department of Labor’s (DOL) Miscellaneous Industries and Occupations Minimum Wage Order (Wage Order), an employer must pay its home health care aide -2- Nos. ^[11] & 12 employees for each hour of a 24-hour shift. DOL has interpreted its Wage Order to require payment for at least 13 hours of a 24-hour shift if the employee is allowed a sleep break of at least 8 hours—and actually receives five hours of uninterrupted sleep—and three hours of meal break time. DOL’s interpretation of its Wage Order does not conflict with the promulgated language, nor has DOL adopted an irrational or unreasonable construction, and so the Appellate Division erred in rejecting that interpretation. Therefore, we reverse the Appellate Division orders and remit for consideration of alternative grounds for class certification for alleged violations of New York’s Labor Law, inclusive of defendants’ alleged systematic denial of wages earned and due, unaddressed by the courts below because of their erroneous rejection of DOL’s interpretation.

I.

Statutory and regulatory background

New York’s Labor Law requires that all employees be paid a minimum wage for each hour worked (Labor Law § 652). The Legislature passed the Minimum Wage Act (the “Act”) in 1937 to ensure that workers “receive wages sufficient to provide adequate maintenance and to protect their health” (L 1937, ch 276, § 551). In 1971, the Legislature extended the Act to cover home health care aides living outside the employer’s home (L 1971, ch 1165, § 1), and in 1978 again amended the Act to require a minimum wage for “each hour worked” (L 1978, ch 747, § 1).

-3- Nos. ^[11] & 12

The Act delegates to the Commissioner of Labor1 the authority to set that minimum wage by issuing “wage orders” (L 1937, ch 276, §§ 555–557), which are promulgated as regulations in accordance with the State Administrative Procedure Act (SAPA) and the dictates of the Labor Law (see Labor Law § 659). The Commissioner has exercised this statutory authority periodically by publishing the minimum wage rate for employment in five industries, subclassified by occupation, employer size, and geographic location (12 NYCRR ch II, subch B, F).

Since 1972, home health care aides have come under DOL’s Minimum Wage Order Number 11 for Miscellaneous Industries and Occupations (12 NYCRR part 142), which applies to all non-exempt employees who are not subject to a different wage order (i.e., those not in the hospitality industry, the building services industry, or farm workers) (see

12 NYCRR 142-2.14; DOL, Minimum Wage Order for Miscellaneous Industries and Occupations at 1 [effective Dec. 31, 2016] [“This Part shall apply to all employees, as such term is defined in this Part, except: (a) employees who are covered by minimum wage standards in any other minimum wage order promulgated by the commissioner; and (b) employees of a nonprofitmaking institution which has elected to be exempt from coverage under a minimum wage order, pursuant to subdivision 3 of section 652 of the Minimum Wage Act”]).

-4- Nos. ^[11] & 12

The Wage Order states, in relevant part:

“The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer, and shall include time spent in traveling to the extent that such traveling is part of the duties of the employee. However, a residential employee—one who lives on the premises of the employer—shall not be deemed to be permitted to work or required to be available for work: (1) during [the employee’s] normal sleeping hours solely because [the employee] is required to be on call during such hours; or (2) at any other time when [the employee] is free to leave the place of employment” (12 NYCRR 142-2.1 [b]). In March 2010, DOL issued an opinion letter, responding to questions about the application of the Wage Order to home health care aides, including the calculation of hours worked when assigned to a patient’s home, referred to as a “live-in employee.” The letter distinguishes between employees who are “on call”—meaning employees who are considered to be working during all hours they are required to remain in a particular work area, including when they are waiting to perform their services—and employees who are “subject to call” such that they are able to leave the work area between assignments and are paid only for work performed.

The letter further acknowledges that a “residential employee,” defined in the Wage Order as a person who lives on the premises of the employer, is deemed not to be working during normal sleeping hours solely because they are “on call,” or when free to leave the place of employment. The letter goes on to explain that DOL treats all “live-in” employees -5- Nos. ^[11] & 12 the same when determining the number of hours worked, regardless of whether they are residential employees. Specifically, the letter states that

“it is the opinion and policy of this Department that live-in employees must be paid not less than for thirteen hours per twenty-four hour period provided that they are afforded at least eight hours for sleep and actually receive five hours of uninterrupted sleep, and that they are afforded three hours for meals. If an aide does not receive five hours of uninterrupted sleep, the eight-hour sleep period exclusion is not applicable and the employee must be paid for all eight hours. Similarly, if the aide is not actually afforded three work-free hours for meals, the three-hour meal period exclusion is not applicable” (Opinion Letter from Maria L. Colavito, Counsel, DOL, Mar. ^[11], 2010). The letter explains that home health care aides assigned to a 24-hour shift at a patient’s home are live-in, non-residential employees, who must be paid for at least 13 hours of work. Under DOL’s interpretation of the Wage Order, the remaining 11 hours of the shift are not included in the calculation of compensable hours because this time is allocated for eight hours of sleep and three hours of meal time for the employee. If the home health care aide does not receive a minimum of five hours uninterrupted sleep and work-free meal breaks, the employer must pay for every hour of a 24-hour shift—meaning the employer cannot exclude 11 hours from the compensable hours total—because when the aide is not provided with actual and substantial duty-free periods for personal use, the employer rather than the employee benefits from the time and the employer must pay for profiting off the employee’s labor.

The March 2010 opinion letter, issued prior to the filing of plaintiffs’ underlying actions and specifically addressed to the status of home health care aides, is only a recent -6- Nos. ^[11] & 12 articulation in a long line of official statements by DOL explaining its general policy towards compensable work for 24-hour shift employees. For decades, DOL has consistently interpreted the Wage Order as applied across occupations to account for substantial periods of employee inactivity during a 24-hour shift when an employee is able to utilize the time for personal matters. As far back as 1969, DOL determined that, in the case of employees “required to be on duty for a 24 hour period,” it would consider “up to 8 hours of sleeping time . . . as not being hours worked” within the meaning of the Wage Order, if certain conditions were met (DOL, Mem from George Ostrow to Daniel A. Daly [Oct. 27, 1969]). The exclusion would only apply if there was “express or implied agreement” to exclude time for sleep, the employer provided “adequate sleeping facilities for an uninterrupted night’s sleep,” the employee actually received five hours of sleep, and interruptions to perform duties were considered work time (id.).

In 1998, the Commissioner expressly addressed home health care aides, in response to a letter from an employee of a home health care provider and explained that, for “live- in” home health care aides, including those working an on-site 24-hour shift:

“it is the policy of the [DOL] that such persons must be paid for no less than 13 hours of each 24-hour day they are required to remain ‘on call’ in the home of the person receiving their services—provided that they are afforded eight hours for sleep and actually receive five hours of uninterrupted sleep and that they are afforded three hours for meals. If a ‘live-in’ home health aide does not receive five hours of uninterrupted sleep the eight hour sleep period exclusion is not applicable, and the home health aide must be paid for all eight hours in question. Similarly, if a ‘live-in’ home health aide is not actually afforded three work-free hours for meals, the three-hour meal -7- Nos. ^[11] & 12

period exclusion is not applicable” (DOL, Letter from James J. McGowan [Oct. 27, 1998]). This interpretation of the Wage Order is similar to the federal government’s guidance on the minimum compensable hours for 24-hour shift employees under the Fair Labor and Standards Act (FLSA). According to the United States Department of Labor, when an employee is “required to be on call for 24 hours a day,” but has “a normal night’s sleep” and “ample time in which to eat . . . meals,” it may be “justif[ied to conclude] that the employee is not working at all times during which [the employee] is subject to call in the event of an emergency” (U.S. Dept. of Labor, Interpretative Bulletin No. 13: Hours Worked – Determination of Hours for Which Employees are Entitled to Compensation Under the Fair Labor Standards Act of 1938 [July 1939] at 4). Under current federal regulations, an employer may exclude up to eight hours of sleep time from compensable time for employees who work 24-hour shifts, assuming certain conditions are satisfied (29 CFR 785.22).

II. Plaintiffs’ putative classes based on defendants’ alleged New York Labor Law violations

In both appeals, plaintiffs seek certification of a class of home health care aides for alleged violations of the Labor Law based on their respective employer’s failure to pay putative class members a required minimum wage for each hour of a 24-hour shift. Plaintiffs care for some of the most vulnerable members of our society, doing work essential to the survival of their patients. Plaintiffs allege that they are part of a workforce that is predominantly composed of women and recent immigrants, and one that they claim -8- Nos. ^[11] & 12 is easily exploited and vulnerable to various forms of wage abuse. Plaintiffs and amici paint a picture of a growing home health care industry where employers reap huge profits from both private and taxpayer funds, while refusing to pay the minimum wage for each hour worked to those who do challenging labor, at all hours of the day and night, often four or five times a week.

Defendants are private home health care companies and their owners who employ plaintiffs and other home health care aides to serve elderly and infirm patients for up to 24 hours at a time. Throughout these litigations, defendants maintained that the applicable law and DOL regulations do not mandate that they pay the equivalent of minimum wage for each hour of a 24-hour shift, relying on DOL’s interpretation of its Wage Order.

A. Andryeyeva v New York Health Care, Inc.

Plaintiffs Lilya Andryeyeva and Marina Ordus are former employees of New York Home Attendant Agency, an entity formed by defendant New York Health Care (NYHC), a New York State Department of Health licensed home health care agency. They commenced an action individually and sought class certification on behalf of all other home health aides who were employed by NYHC and worked 24-hour shifts. NYHC provides home care services to elderly and disabled individuals in New York City and Nassau County pursuant to contracts with various managed care companies and local health departments. Defendants’ home care aides assist patients with a range of tasks, including cooking, feeding, bathing, housework, using the restroom, and changing diapers.

-9- Nos. ^[11] & 12

NYHC regularly assigns home care aides to work 24-hour “sleep-in” shifts. During such shifts, a home care aide is required to be present in the patient’s home for a full 24- hour period. Plaintiffs allege that defendants violated the Labor Law by failing to pay the required minimum wage, overtime, and “spread of hours” premiums2 to home aides who worked 24-hour shifts. Plaintiffs allege they routinely did not receive five hours of uninterrupted sleep because their patients required assistance multiple times each night. Plaintiffs also allege that they were never allowed to take meal breaks; indeed, NYHC’s orientation manual states expressly: “Patients are never to be left alone!” According to Andryeyeva, the patient for whom she cared most frequently suffered from dementia, “never” slept through the night, and “usually got up two or three times each night to use the bathroom,” requiring assistance each time. Plaintiffs further allege they were never told that they should receive five hours of uninterrupted sleep during 24-hour shifts and that defendants failed to record when (or even whether) plaintiffs took sleep and meal breaks. Defendants maintain that home health care aides in their employ are “expected” to receive an eight-hour sleep break and three hours of meal breaks per 24-hour shift.

In support of their motion for class certification, plaintiffs argued that they met each of the statutory requirements of CPLR 901, namely, numerosity, predominance, typicality, adequacy of representation, and superiority. Plaintiffs argued that the proposed class includes 1,063 employees who suffered the same core injury, i.e., defendants’ alleged - 10 - Nos. ^[11] & 12 failure to pay lawful wages for each hour worked during 24-hour shifts. Plaintiffs further asserted that they would fairly and adequately represent the class because they had actively participated in the litigation and selected qualified class counsel, and that class treatment was superior to other methods of adjudication because a single judicial adjudication would be more efficient than numerous individual determinations. Plaintiffs argued that they satisfied the requirements of CPLR 902—the interest of class members in controlling the litigation, the inefficiency of individual actions, the extent of prior litigation in the controversy, the desirability of concentrating the litigation in the forum, and any difficulties that may arise in the management of the class action—for many of the same reasons.

In opposition, defendants asserted that they were not required to pay the minimum wage to home care aides for each hour of a 24-hour shift because the aides were “live-in employees,” and under DOL’s March 2010 opinion letter, they could be paid less than the minimum wage for up to eight hours of sleep time and three hours of meal time. Therefore, defendants argued, each worker’s claim required an individual examination of the facts and circumstances of their respective employment, rendering the claims unsuitable for class certification. Unpersuaded, Supreme Court refused to adopt DOL’s interpretation and granted plaintiffs’ motion to certify a class of home attendants who worked 24-hour shifts during a defined period.

The Appellate Division affirmed, concluding that “DOL’s interpretation is neither rational nor reasonable, because it conflicts with the plain language of the Wage Order” (Andryeyeva v New York Health Care, Inc., 153 AD3d 1216, 1218 [2d Dept 2017]). The

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- 11 - Nos. ^[11] & 12 court reasoned that, because plaintiffs were required to be present at the patient’s home and to perform services as needed if called upon, they were “available for work,” regardless of whether they were afforded sleep and meal breaks. In reaching this conclusion, the court held that the phrase “available for work” includes nighttime hours when the employee was “not called upon to perform services” (id. at 1219–1220). The court relied on the First Department’s decision in Tokhtaman v Human Care, LLC (149 AD3d 476 [1st Dept 2017]), in which that court similarly rejected DOL’s interpretation of the Wage Order as in conflict with its plain meaning. The Second Department further concluded that plaintiffs adequately established the requirements of CPLR 901 and that none of the CPLR 902 factors warranted a denial of the certification motion. The Appellate Division granted defendants’ motion for leave to appeal pursuant to CPLR 5602 (a).

B. Moreno v Future Care Health Servs., Inc.

Plaintiffs Adriana Moreno and Leonidas Peguero-Tineo are home health care aides employed by defendants Future Care Health Services, Inc. and Americare Certified Special Services, Inc. As in Andryeyeva, plaintiffs allege that defendants underpaid their employees by failing to pay the minimum wage for each hour of their assigned 24-hour shifts, not paying overtime, and failing to pay “spread of hours” premiums. The Moreno plaintiffs further allege that defendants failed to pay employees adequate wages to attend mandatory “in service” training sessions, reimburse employees for supplies or uniform cleaning, and maintain adequate employment records as required by Labor Law § 195 and

12 NYCRR 142-2.

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- 12 - Nos. ^[11] & 12

Plaintiffs moved to certify “a class of current and former home health care workers employed by Defendants.” Plaintiffs argued that they satisfied the requirements under CPLR 901 because the proposed class included at least 40 members and presented several common questions, including whether defendants “engaged in a pattern or practice of not paying all wages due for work performed and overtime” and “whether Defendants have kept true and accurate time records for all hours worked by Plaintiffs and the Class.” They further argued that plaintiffs were adequate class representatives and had selected qualified counsel to prosecute the class wage claims. Finally, plaintiffs argued that class treatment was superior to other means of resolving their claims because requiring hundreds of class members to file separate actions alleging the same misconduct against the same defendants was inefficient and would waste judicial resources. Plaintiffs also argued that the requirements of CPLR 902 were satisfied.

Like the Andryeyeva defendants, the Moreno defendants responded in opposition that plaintiffs failed to establish grounds for certification because resolving plaintiffs’ claims would require “individualized investigation, proof and determination.” Defendants relied, in large part, on the fact that under DOL’s interpretation of the Wage Order, plaintiffs’ sleep and meal time was non-compensable and defendants were not obligated to pay the minimum wage for this time so long as plaintiffs received at least five hours of uninterrupted sleep and three hours for meals. With respect to plaintiffs’ other claims, defendants asserted that there was no evidence to support plaintiffs’ allegations. Defendants further argued that plaintiffs failed to satisfy CPLR 902, in part because the

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- 13 - Nos. ^[11] & 12 individualized issues presented by the litigation were not appropriate for resolution in a class action. Supreme Court agreed with defendants that certification was unwarranted and denied plaintiffs’ motion.

The Appellate Division reversed in an opinion decided the same day as Andryeyeva. The court concluded that the DOL opinion letter “conflicts with the plain meaning of” the Wage Order, and that home health care aides were entitled to be paid the minimum wage for every hour of a 24-hour shift even if they were afforded sleep and meal time because they are not “residential employees” within the meaning of the Wage Order (Moreno v Future Care Health Servs., Inc., 153 AD3d 1254, 1255–1256 [2d Dept 2017]), citing Andryeyeva, 153 AD3d at 1219). The court further concluded that plaintiffs had established the prerequisites for class treatment and certified the proposed class. As in Andryeyeva, the Appellate Division granted defendants’ motion for leave to appeal to this Court.

C. DOL’s Emergency Regulation

In direct response to these decisions and the holding in Tokhtaman, DOL issued an emergency regulation which added the following language to the Wage Order:

“Notwithstanding the above, this subdivision shall not be construed to require that the minimum wage be paid for meal periods and sleep times that are excluded from hours worked under the Fair Labor Standards Act of 1938, as amended, in accordance with sections 785.19 and 785.22 of 29 C.F.R. for a home care aide who works a shift of 24 hours or more” (NY Reg, Oct. 25, 2017 at 6).

- 13 - - 14 - Nos. ^[11] & 12 In DOL’s Notice of Emergency Rulemaking, it announced that the emergency regulation was “needed to preserve the status quo, prevent the collapse of the home care industry, and avoid institutionalizing patients who could be cared for at home, in the face of recent decisions by the State Appellate Divisions that treat meal periods and sleep time by home care aides who work shifts of 24 hours or more as hours worked for purposes of state (but not federal) minimum wage” (id. at 5). In the accompanying Regulatory Impact Statement (RIS),3 DOL explained that its interpretation had been long-standing, and evolved as legislative expansions covered workers in the home. DOL explained that by the 1970s, the Commissioner interpreted the minimum wage requirement to exclude sleep and meal periods for these groups of workers, and included this interpretation in formal guidelines, legal opinions, investigators’ manuals and the Commissioner’s determinations. The RIS further stated that the Commissioner amended the Wage Order in 1986 to provide for overtime calculation in accordance with federal methodology and “grew increasingly to look to, and rely upon federal FLSA regulations interpreting” federal law regarding work hours, meal and sleep periods, “so that hours worked were calculated consistently at the state and federal level for overtime (and other) purposes” (id. at 6). The emergency regulation expired approximately two months later, on January 2, 2018. To avoid any lapse in coverage, DOL promulgated a series of substantially identical -2- Nos. ^[11] & 12 less than minimum wage. That result is not only unfair, it is completely at odds with the plain text of the wage order. Accordingly, I dissent.

I.

The Minimum Wage Act, first enacted in 1937, was designed to address the financial hardship faced by those receiving “wages insufficient to provide adequate maintenance for themselves and their families” (Labor Law § 650). Payment of insufficient wages, the legislature noted, “threatens the health and well-being” of our State’s workers (id.). In enacting the Minimum Wage Act, the legislature sought to provide relief “as rapidly as practicable without substantially curtailing opportunities for employment or earning power” (id.). Minimum wage standards are vital to accomplishing that goal (id.; see West Coast Hotel Co. v Parrish, 300 US 379, 398-399 [1937] [“minimum wage requirements” prevent “the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living”]). Given these important policy objectives, and the careful balancing critical to setting a minimum wage, the Minimum Wage Act sets forth a detailed procedure for issuing wage orders—one that mandates transparency and the inclusion of various affected stakeholders (see Labor Law §§ 655-659).

As a first step, the Commissioner must convene and appoint a “wage board . . . composed of not more than three representatives of employers, an equal number of representatives of employees, and an equal number of persons selected from the general public” (Labor Law § 655 [1]). The wage board has extensive authority. It has the power to “conduct public hearings,” “consult with employers and employees,” issue subpoenas -3- Nos. ^[11] & 12 for “testimony . . . and books, records, and other evidence,” and “cause depositions” (Labor Law § 655 [3]). The wage board’s end goal is, with the approval of a “majority of its members,” to “submit to the [C]ommissioner a report, including its recommendations as to minimum wages” in certain occupations (Labor Law § 655 [4]).

The wage board’s submission of a report is followed by continued dialogue and consultation. The Commissioner is statutorily obligated to “publish a notice” of the report and to receive “objections to the report and recommendations” (Labor Law § 656). The Commissioner may then “accept . . . the board’s report and recommendations”—potentially with modifications—or “reject” them (Labor Law § 657). If the board’s report and recommendations are accepted, “[t]he Commissioner . . . thereafter issues a wage order setting a minimum wage in a specific occupation” (National Rest Ass’n v Comm’r of Labor, 141 AD3d 185, 192 [3d Dept 2016]). The statute also contemplates further amendments; after the wage order “has been in effect for six months or more,” the same wage board may be “reconvene[d]” by the Commissioner or on a “petition of fifty or more residents . . . in or affected by” the covered occupations (Labor Law § 659 [1]). “[A]ny minimum wage order . . . issued by the [C]ommissioner . . . shall, unless appealed from . . . be final” (Labor Law § 657 [1]).

This exhaustive process complies, as it must, with the strictures of the State Administrative Procedures Act (SAPA) (see majority op at 3). SAPA was formulated “[a]fter years of study . . . to guarantee that the actions of administrative agencies conform to uniform, sound and equitable standards” (Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 177 [1985]). Among other things, SAPA “outlines uniform administrative procedures -4- Nos. ^[11] & 12 that State agencies must follow in their rule making, adjudicatory and licensing processes” (Industrial Liaison Comm of Niagara Falls Area Chamber of Commerce v Williams, 72 NY2d 137, 144 [1988]).

DOL’s Minimum Wage Order Number 11 for Miscellaneous Industries and Occupations (the Wage Order) was passed in 1960 in accordance with the procedures required by SAPA and the Minimum Wage Act (see 12 NYCRR 142-2.14; see also Report of the Industrial Commissioner Upon the Promulgation of Minimum Wage Order No. 11 for Miscellaneous Industries and Occupations 1 [Sept 29, 1960]). In relevant part, the Wage Order provides:

“The minimum wage shall be paid for the time an employee is permitted to work, or is required to be available for work at a place prescribed by the employer, and shall include time spent in traveling to the extent that such traveling is part of the duties of the employee. However, a residential employee—one who lives on the premises of the employer—shall not be deemed to be permitted to work or required to be available for work:

(1) during [the employee’s] normal sleeping hours solely because [they are] required to be on call during such hours; or

(2) at any other time when [the employee] is free to leave the place of employment” (12 NYCRR 142-2.1 [b]). As relevant here, the Wage Order mandates minimum wage compensation whenever an employee is “available for work at a place prescribed by the employer” (12 NYCRR 142- 2.1 [b]). The Wage Order contains only one exception—applicable only to residential employees—permitting employers to deduct certain hours’ of pay that would otherwise be compensable.

-5- Nos. ^[11] & 12

II.

Plaintiffs are non-residential home health care aides who work 24-hour shifts. During each shift, home health care aides are required to be present in the patient’s home for the full 24-hour period (majority op at 9). They assist with a variety of tasks integral to a patient’s daily functioning: “cooking, feeding, bathing, housework, using the restroom, and changing diapers” (majority op at 8). According to plaintiffs’ allegations, home health care aides routinely do not receive meal breaks or adequate time for uninterrupted sleep, as their patients require assistance throughout the shift. As one employer’s orientation manual states: “Patients are never to be left alone!” Plaintiffs further allege that defendants failed to record when (or even whether) plaintiffs took sleep and meal breaks, making it impossible to reconstruct their actual hours of work.

All agree that the Wage Order applies to plaintiffs in this case, and that plaintiffs do not fall within the Wage Order’s “residential employee” exception (see majority op at 24- 25). Though home health care aides are nowhere excepted from minimum wage requirements, DOL nonetheless contends that the Wage Order should be interpreted to exclude eleven hours of each plaintiff’s work day: eight hours for “sleep time” and three hours for “meal time.” Specifically, DOL argues that the phrase “available for work at a place prescribed by the employer” imposes two distinct requirements—“available for work” and “at a place prescribed by the employer”—such that physical presence on the premises is, by itself, inadequate for an employee to be deemed “available for work” (majority op at 19-20). In other words, DOL contends that, for non-residential employees like plaintiffs, the Wage Order should be interpreted to require both “presence and an -6- Nos. ^[11] & 12 availability during a time scheduled for actual work” (majority op at 19). Applying that interpretation, DOL asserts that home health care aides are not technically “available for work” during “sleep time” and “meal time,” and therefore they need not be paid for those periods.

DOL (and the majority) may be correct that the Wage Order’s “available for work” requirement entails more than physical presence at a place prescribed by the employer (majority op at 19). Unlike mere presence, the notion of availability implies that an employee is “ready, willing, and able to” take on work (Black’s Law Dictionary, Available for Work [10th ed 2014]). Thus, an employee might not be “available for work” at a time when, for instance, the employee cannot be reached, or is otherwise guaranteed to remain undisturbed. Plaintiffs, then, must be both present and “available for work”—not merely present—to be entitled to minimum wage compensation.

But DOL (and the majority) cannot be correct that plaintiffs’ sleep time may be excluded from their wages. Under the Wage Order’s single exception—not applicable to plaintiffs—residential employees’ “sleeping hours” are expressly excluded from the time they are considered “available for work,” thereby allowing employers to deduct those hours’ of pay. By providing that, for residential employees, sleep hours do not constitute time the employee is “available for work,” the exception signifies that, for all other employees, sleep hours do constitute time they are “available for work”—and, accordingly, must be paid (Walker v Town of Hempstead, 84 NY2d 360, 366–67 [1994] [noting that it is “not . . . necessary” to provide exceptions to a general term if they “fall within the preceding general proscription”]; McKinney’s Cons. Law of NY, Book 1, Statutes § 213 -7- Nos. ^[11] & 12 [noting that an exception encapsulates items that would “otherwise would fall within (the) scope” of a term]; CJS Statutes § 505 [noting that an exception operates to “remov(e) something . . . which would otherwise be within” the clause to which it applies]). Put differently, because residential employees’ sleep hours are specifically excluded from compensable time, it must follow that sleep hours would otherwise constitute time for which the employee must be compensated; if sleep time did not fall within “available for work” time, there would be no need to expressly exclude it. Accordingly, while the “available for work” requirement might demand more than physical presence—for instance, prompt readiness or accessibility—it cannot exclude “sleeping hours” for non- residential employees.

The majority asserts that the “residential employee” exception does not “exclude” sleeping hours from compensable time, but rather serves only to “clarif[y] that sleeping hours shall not be deemed work hours solely because the employee is required to be on call during such hours” (majority op at 25 n 8 [quotation marks, brackets, and citation omitted]). Whether called an “exception” or a “clarification,” the provision’s import is the same: In specifying that a residential employee’s sleeping hours should not be compensated solely because the employee is on call, the provision signifies that—for all other employees— sleeping hours should be compensated solely because they are on call.

By distinguishing residential from non-residential employees in this way, the Wage Order reflects the policies of dignity and fairness advanced by the Minimum Wage Act. Residential employees, by definition, have living quarters on the premises and are provided regular periods of rest. “In the ordinary course of events,” a residential employee “has a -8- Nos. ^[11] & 12 normal night’s sleep, has ample time in which to eat his meals, and has a certain amount of time for relaxation and entirely private pursuits,” and “the employee may be free to come and go during certain periods” (U.S. Dept. of Labor, Interpretative Bulletin No. 13: Hours Worked – Determination of Hours for Which Employees are Entitled to Compensation Under the Fair Labor Standards Act of 1938 [July 1939] at 3). Recognizing this unique arrangement, the Wage Order permits employers to deduct a residential employee’s “sleeping hours,” as well as time when the employee is “free to leave the place of employment” (12 NYCRR 142-2.1 [b]).

Those presumptions of ample free time and private pursuits do not apply to non- residential home health care aides, who “do challenging labor, at all hours of the day and night” (majority op at 8; DOL Br at 29 [“To be sure, even during their sleep and meal breaks, employees working twenty-four hour shifts are not truly free from their employment – for example, they are generally not free to leave their employers’ premises, and are expected to respond if called back to work”]). Unlike residential employees, who reside in their workplace, home health care aides report for a 24-hour shift, often remaining available from beginning to end. Given the nature of a home health care aide’s work— providing 24-hour patient care without meaningful breaks—the Wage Order sensibly excludes them from the “residential employee” exception and its corresponding compensation deductions. In the context of “sleeping hours,” the Wage Order recognizes -9- Nos. ^[11] & 12 that home health aides remain on call (i.e., “available for work”) even during those hours designated for sleep.^[1]

Under the plain terms of the Wage Order, for non-residential employees like plaintiffs—who remain consistently “available for work,” even during sleeping hours— sleep time cannot be deducted from their pay. DOL’s contrary reading is expressly belied by the text of the regulation, and therefore warrants no deference (see Visiting Nurse Serv. of New York Home Care v. New York State Dep't of Health, 5 NY3d 499, 506 [2005]; Albano v Bd of Trustees of New York City Fire Dep’t, 98 NY2d 548, 553 [2002]; Raritan Dev Corp v Silva, 91 NY2d 98, 100 [1997]).

III.

Casting aside the plain text of the Wage Order, the majority defers to DOL’s incompatible reading. Not only does that holding impose a new and problematic standard for agency deference, it enables DOL to circumvent statutory promulgation procedures in favor of an informal and erratic process replete with inconsistency. Worst of all, DOL’s interpretation, now adopted by the majority, will have profound and far-reaching ramifications for a vulnerable and often mistreated workforce.

A.

Under the guise of deference, the majority adopts a construction of the Wage Order that runs contrary to the regulation’s text. Deference is unwarranted, however, where an - 10 - Nos. ^[11] & 12 agency’s interpretation is “irrational or unreasonable” (Matter of Howard v Wyman, 28 NY2d 434, 438 [1971]) or, in other words, unsupported by the regulation’s plain text (Visiting Nurse Serv, 5 NY3d at 506). While we will defer to “a rational interpretation that [is] not inconsistent with the plain language” (James Square Associates LP v Mullen, 21 NY3d 233, 251 [2013]), we have never elevated deference over clear, unambiguous text.

Rather, as we have repeatedly emphasized, plain language must control over an inconsistent agency interpretation (see Raritan Dev Corp, 91 NY2d at 100 [noting our “long-established rule” that we “decline() to enforce” an agency interpretation that is “contrary to the plain meaning” of the relevant “language”]). We have therefore declined to “embrace a regulatory construction that conflicts with the plain meaning of the promulgated language” (Visiting Nurse Serv, 5 NY3d at 506). Indeed, where “the question is one of pure legal interpretation of statutory terms,” we have held that “deference to the [agency] is not required” altogether (Matter of Toys “R” Us v Silva, 89 NY2d 411, 419 [1996]). Because pure interpretation is the “function” of the courts, we have reasoned that there is “little basis to rely on any special competence or expertise of the administrative agency” (Albano v Board of Trustees of New York City Fire Dep’t, 98 NY2d 548, 553 [2002]).

According to the majority, however, deference to DOL is warranted because, “having authored the promulgated text and exercised its legislatively delegated authority in interpreting it, the agency is best positioned to accurately describe the intent and construction of its chosen language” (majority op at 16). That is not, and has never been,