Written by Galen T. Shimoda and Justin P. Rodriguez
Small residential care homes have been popping up all over California as an alternative to large residential nursing facilities, offering a more home-like environment for those needing frequent care. These small businesses have undertaken an admirable calling, caring for the sick, aged, and/or disabled. However, in California, these small businesses must also concern themselves with a very unique, and rather cumbersome, set of wage and hour regulations to make sure they are also treating their employees with the care required by California law.
The practical limitations facing employers and employees in this context are these: first, many of the residents, whether they are placed through Alta California Regional Center ("Alta") or private placement, generally require that someone at least be available to respond to emergencies on a 24-hour basis. Second, it is difficult to find staff that can either afford to live somewhere other than the facility itself, or to find enough staff to allow rotating eight (8) hour shifts for complete 24-hour coverage. Third, funding from Alta is limited and can even be reduced when there are state budget funding issues. Fourth, paying employees the overtime that may be incurred when they are live-ins also working "on call" over the night can be too prohibitive to allow the business to keep running. Indeed, the lack of a sufficient labor force, limited funding, and required long hours can make it very tempting for employers to cut corners and skirt compliance with wage and hour laws. Not only is this ill-advised for basic fairness reasons to employees, it is also ill-advised because the Department of Labor has made it a point to target the residential care home industry to test compliance with wage and hour laws.
Fortunately, there are steps an employer can take to make sure its employees are not overworked while ensuring its residents get a quality standard of care. These can include an alternative workweek arrangement, split shifts, meal period waiver agreements, providing employees meals at no cost to the employees, and non-compensable sleep time agreements for up to eight hours. While each of these options carry with them a host of procedural issues to ensure their validity, they all should be considered as part of a comprehensive approach to ensuring compliance with wage and hour laws.
Another "must do" is documentation to ensure clear understanding between the employer and employee regarding the expectations surrounding these new policies. In our firm's experience representing both employers and employees within the residential care home context, many employees are first generation immigrants with little understanding of English, let alone California's wage and hour laws. Expressly telling employees what is and is not overtime, when breaks can be taken, and when they are free to leave the premises, are the first steps to making sure employers are not cited by the DOL for large wage and hour violations and employees are not mistakenly working longer hours than they are actually supposed to.
If you would like to have our firm review your care home's wage and hour practices for compliance, or are an employee of a care home who has not received all wages owed to you, e.g. overtime, meal and rest period premiums, minimum wages, etc., contact our office for assistance.