Written by Galen T. Shimoda and Justin P. Rodriguez
For those providing services as a caregiver to those in need, there are a multitude of wage and hour laws regarding overtime and minimum wage that may apply. Do you work in a residential care facility? Do you work directly in the client's home? Is the employer a non-profit? Do you spend more than 20% of your time performing household chores and cooking? A different answer to each of these questions may lead to a different result for what laws determine whether you are going to be entitled to overtime and minimum wage protection or not.
Recently, the California Supreme Court added another twist into this analysis that leaves some grey area for litigants. An interesting aspect to wage and hour litigation for caregivers has been what to characterize time spent sleeping during a shift. Is it hours worked or is it off-duty time that does not need to be compensable. However, Mendiola v. CPS Security Solutions, Inc. threw into flux the answer to this question that was seemingly settled. Prior to Mendiola California Courts of appeal had ruled that the federal regulations allowing employers to deduct up to eight hours of sleep time were incorporated into all the wage orders. This meant that if there was an agreement (which could be verbal and/or implied based on conduct) to deduct the time, then an employee's time spent sleeping would not be compensable. Mendiola called this into question and the Court required each of the California Wage Orders to expressly evidence some kind of intent to incorporate the federal regulations rather than to incorporate the regulations into each wage order as a matter of course.
The complicating factor is that Mendiola states it is only giving an opinion on the circumstances surrounding Wage Order 4-2001 and caregivers will fall into either Wage Order 5-2001 or 15-2001. Yet, it is hard to see how many of the statements from Mendiola could not be read to also affect Wage Order 5-2201 and 15-2001. For example, the Court stated every Wage Order needed to have express evidence of intent to incorporate the federal standards and compared language from Wage Order 5-2001 to Wage Order 4-2001. The interesting point to be made here is that none of the language in Wage Order 5-2001 that may arguably be used to say the federal regulations were implied (for example, the definition of hours worked for those residing on the premises is only the active time spent performing duties and, for those in the healthcare industry, the definition of hours worked shall be interpreted as it is in the Fair Labor Standards Act) appear in Wage Order 15-2001. Although there has not been a subsequent case to analyze Mendiola in the context of Wage Order 5-2001 or 15-2001, there appears to be a strong case that those providing direct in home care cannot have any agreement to otherwise reduce compensable hours when they are on a 24 hour shift.
If you are working as a caregiver and believe you may have claims for unpaid wage, please contact our office to have your claims evaluated.