Unpaid Overtime Compensation: Can a Domestic Employer Afford to Pay?

Sacramento, CAThe overtime pay laws that changed for domestic and home care workers in the state of California in January 2014 are about to be bolstered by the Fair Labor Standards Act (FLSA). A year after California moved to guarantee home care and domestic workers the same rights as other employees when it comes to overtime pay and working hours, the FLSA will entrench similar rights to all domestic workers across the country.

While that is good news for domestic and in-home workers, concerns remain. How are these new rules going to be enforced? And will domestic workers who successfully bring unpaid overtime lawsuits against a domestic employer have trouble collecting a settlement from a current or former employer with limited resources?

It’s an issue illustrated by the case of Edy Solares, a native of Guatemala who immigrated to the US and settled in California. The 38-year-old is a truck driver, and a year ago he won a judgment with the help of the Office of the California Labor Commissioner against his former employer, after Commissioner Julie A. Su determined Solares’ employer had misclassified him as exempt from overtime pay.

The long hours that Solares put in behind the wheel, while racking up a substantial amount of unpaid overtime, resulted in a judgment worth $145,000 that his former employer was required to pay.

“When we got that letter, the family celebrated,” Solares said in an interview with the McClatchy Washington Bureau (10/3/14). “We were happy. But now, today, we’re still in the same place. We have nothing.” They had talked about buying a house and starting a college fund for their kids with the money. In reality, they’ve only managed to recover, according to the unpaid overtime report, a fraction of that amount.

In California, it has been reported that only 17 percent of workers who won wage cases before the California Division of Labor Standards Enforcement were able to recover any payment at all from 2008 to 2011, according to the UCLA Labor Center. “The difficulty is not in winning your claims for unpaid wages or proving you’re an employee as opposed to an independent contractor,” said Tia Koonse, the center’s legal and policy research manager.

The California Labor Commissioner, at the end of October, announced the issuance of citations worth in excess of $3 million to four assisted living facilities in the San Francisco Bay area. An investigation by Julie A. Su’s office noted violations pertaining to minimum wage and unpaid overtime under California overtime law, together with rest period violations. A total of 89 caregivers are affected. The citations break down to $1,820,551 for wages and premiums underpaid, $1,186,308 for liquidated damages and $121,550 for civil penalties against four defendants: Common Destiny Care Homes in Fremont, Abraham Rest Home Inc. and Sanchez-Abraham Corporation of Walnut Creek and Concord, and Florian White Dove Care of Brentwood.

It is expected that the wronged employees will see overtime pay retroactive, subject to any appeal, from the four employers.

However, what if a domestic worker’s employer is a single family without the resources to pay back wages? And how will the new rules, such as the now-outlawed day rate, be effectively enforced?

It behooves the domestic and in-home worker to be proactive in educating themselves on the new rules and statutes, so that they are aware of infractions that may affect them. An overtime pay lawsuit may be in order, as a way to facilitate a complaint and owed compensation. New rules also protect domestic workers from any retaliation for submitting a justifiable complaint.

But it also behooves the legal community and legislators to remain aware that a win in the courtroom, and a settlement owed, is hollow if there is no money forthcoming, whatever the stated reason. Vigilance in pursuing the payment of a settlement must equal the vigilance demonstrated in pursuing the violation in the first place…