Written by Galen T. Shimoda and Justin P. Rodriguez
Depending on where they work, employees providing services as caregivers for the elderly, disabled, or otherwise infirm in California used to fall into two very different overtime compensation scenarios: 1) if an employee was working in a residential care facility that was not the private home of the person they were caring for, they generally fell within California’s overtime protection laws; and 2) if an employee was acting as a care giver in the private home of the person they were caring for, they generally were excluded from overtime protection laws. These two scenarios existed because of an overtime exemption known as the “personal attendant” exemption. The personal attendant exemption exists in California Wage Orders that cover both residential care facilities (Wage Order No. 5-2001) and direct, in-home care arrangements (Wage Order No. 15-2001). However, the Wage Order covering residential care facilities has an added requirement that the employer be a non-profit organization for the exemption to apply. Many residential care employers are private and the exemption from overtime compensation does not apply to them. Therefore, caregivers working in these residential care facilities are typically entitled to overtime wages.
On the other hand, the Wage Order covering direct, in-home care employers does not have the non-profit requirement. This makes it very difficult for these employees to demonstrate that they are entitled to overtime because they must show that more than twenty percent of their time is spent on tasks other than supervising, feeding, or dressing a client. While this may seem like an easy task, opinion letters from the Division of Labor Standards Enforcement (one of the state agencies tasked with enforcing California’s wage and hour laws) have not provided clear guidance on the scope of “supervise, feed, or dress.”
Then, on January 1, 2014, the added burden facing direct, in-home caregivers was lifted by the passage of Assembly Bill 241, which provides overtime wages to employees who are considered personal attendants working in private households. So as of January 1, 2014, caregivers working in private households are entitled to overtime pay for any hours worked over nine hours in a day or forty-five hours in a week. The more favorable calculation, i.e. daily or weekly, will be used to determine the total wages owed to an employee in any given pay period. Additional issues, such as whether hours are compensable for “on-call” shifts during the night or whether agreements are valid if they exclude up to eight hours for time spent sleeping during a twenty-four hour shift, will become even more pertinent now that the new law has passed. Ultimately, caregivers in California may have substantial amounts of unpaid wages owed to them in the near future given this law.
If you believe you have not been paid for all hours worked, please contact our office.