High Court: No overtime for home nursing
Case involved a nurse from the Philippines who was providing healthcare services to an elderly woman.
Elderly woman looks out of window [illustrative] Photo: Ivan Alvarado / Reuters
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.
of her main claims against her employer was to receive overtime
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.
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.
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
As such, the court majority said that the real-world effect of an
aggressive interpretation of the overtime hours law seemed limited and
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
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
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.