Personal Care Workers: Are Your Employers in Compliance?

Los Angeles, CAMuch focus has been placed, over the past several months, on the minimum pay raise to $10 per hour that came into effect the first of the year, together with the equal pay regulations that also took effect this past January 1. However, lost in the introduction of these latest updates to California labor law is a statute that came into effect January 1, 2014 that removed the overtime exemption from personal caregivers.

Previously, under the California labor code, most personal caregivers were exempt from overtime. Thus, any caregiver being paid a day rate, or a set monthly rate regardless of the number of hours worked, would not take issue with their circumstances.

As of two years ago this past January, this is no longer the case. Now, according to California labor law and corresponding changes to the Domestic Worker Bill of Rights (DWBR), a personal care worker toiling for in excess of nine hours in any given day, or more than 45 hours in any given week, must be paid time-and-a-half in accordance with California law.

Attorney and columnist Daniel R. Chaleff of the law firm Chaleff Rehwald, writing in the Weekend Balita (2/13/16), uses the example of a caregiver who might be expected, depending upon the circumstances, to be on-call for 24 hours - perhaps caring for an elderly individual at home, for example, or a nanny who has responsibility for children across an entire 24-hour period.

“With the increase in California’s minimum wage to $10 an hour on January 1, 2016” Chaleff writes, “that means a 24-hour caregiver must be paid $315 a day to comply with the current law.

“Many caregivers are working under a day rate or monthly salary…that does not compensate for the overtime hours worked, and results in a substantial unpaid overtime claim for the employee.”

It’s possible, even two years on, that many caregivers or personal attendants are not aware of this change in California labor employment law - or conversely, may have been convinced by an employer that the caregiver is, in fact, an independent contractor.

While independent contractors are exempt from overtime as they are not classified as employees per se, an independent contractor also has a certain level of autonomy an employee would not be expected or have the opportunity to duplicate. To that end, were the employer to continue calling the shots in terms of their needs, personal care and/or that of their children, then it can be argued the personal caregiver is not qualified as an independent contractor and, thus, could be in line for substantial compensation from an employer not playing by the rules.

Chaleff notes that a 24-hour caregiver working in such a capacity for one year under a day rate could be in for a $100,000 windfall in compensation, interest, penalties and attorney’s fees through a California labor lawsuit.

While each case is different, the combination of a raise in the minimum wage and the now two-year-old change to the DWBR and corresponding California state labor laws may have placed a domestic worker in a negative situation should an employer remain noncompliant.

Such laws are designed to enhance a worker’s opportunity to pursue justice under the law. It behooves an employee who suspects violations in pay to come forward, on behalf of themselves and all those similarly situated, to speak up and be heard without fear of retaliation.