High Court: No overtime for home nursing

With a razor-thin majority of 5-3-1, a nine-judge panel of the High Court of Justice on Monday held that the Law for Overtime Hours and Rest does not apply to a nurse who provided home-based healthcare services, rejecting the petition seeking to apply the law.

The decision came as part of a rare special additional hearing following the High Court’s prior rejection of the petition on November 29, 2009.

The background for the case involved a nurse from the Philippines who was providing healthcare services to an elderly woman in her house during daytime hours.

After completing her employment, the nurse filed suit against her employer in the Tel Aviv Regional Labor Court.

One of her main claims against her employer was to receive overtime hours.

The Tel Aviv Regional Labor Court as well as the National Labor Court both rejected her petition.

However, the National Labor Court’s rejection only applied to the petitioner’s case, and it left open the possibility of applying the overtime hours law to a future case involving someone in the petitioner’s line of work.

The High Court’s initial 2009 ruling went a step farther, rejecting any attempt to apply the 1951 overtime hours law to any persons serving in her line of work on the grounds that the framework of her line of employment did not fit well into the legal scheme set out by the law.

The 2009 decision also called on the legislature to specifically address the issue and provide a framework relating to providing home-based health care services and overtime hours.

The High Court majority, led by Supreme Court President Asher D. Grunis, upheld the earlier ruling, stating that even though the legislature had not yet heeded the court’s call in 2009, the court still was powerless to apply the current overtime hours law without new legislative action.

The majority said that home-based health care services have an expectation that the nurse will work all daylight hours as a standard, rather than the standard eight hours a day in many other areas of work.

The majority opinion said that the issue was complicated by the fact that the “employer” in this context was often a “weak” sector in terms of physical capacity and ability to act independently.

This was different than the paradigm generally considered by the overtime hours law, in which it was clear that the employer had the power and the employee was the weaker party, said the court.

The court said it was necessary for the legislature to provide the solution and balance the priorities involved precisely because both parties in the relationship had aspects that make them weaker and special issues that called for an overall solution, not a piecemeal set of court rulings addressing limited aspects of the problem.

The court majority added that the petitioner was no longer working for the elderly woman, who had died, and that it appeared that she also was no longer residing in Israel.

As such, the court majority said that the real-world effect of an aggressive interpretation of the overtime hours law seemed limited and unworthy.

Justice Neal Hendel agreed with the majority in principle but said that an intermediate solution was needed, in light of the delay in legislative action and the gravity of the situation.

He suggested that those in the line of work of the petitioner be paid 20 percent above minimum wage for hours that would normally be considered “overtime,” until the Knesset takes action.

Justices Edna Arbel and Esther Hayot and Deputy Supreme Court President Miriam Naor disagreed, saying that the overtime hours law should be applied to home-based health care service providers, developing a model for paying overtime hours on a case-by-case basis.

In their minority opinion, they said that there was no time to wait for a legislative solution, which essentially left nurses defenseless from being forced to work in unreasonable conditions.

Justice Naor said it is “our responsibility as a society to defend the weak and the downtrodden amongst us.”

This position was similar to the position of the State Attorney’s Office, which, because of the public import of the issue, filed a statement supporting having some nurses receive overtime hours and opposing any blanket position that the law did not apply to them.

The state attorney said this position was important as long as there was no other defense of the nurses’ rights.