Still No Pay for California Residential Care Workers

Los Angeles, CAResidential care workers can win California unpaid wages lawsuits when they sue their employers for wage theft and other illegal employment practices. That’s the good news. But the bad news is that they are still having trouble getting paid, and the violations of California state labor laws continue.

Much has been written about the plight of elderly and disabled people who are abused and neglected in nursing homes and residential care facilities. But, the other side of the story is not pretty either. Both those in need of care and their caregivers are victims in this story.

Recent reporting describes abusive working conditions that disempower workers and also likely endanger their patients. It also highlights the need for further legislative and enforcement action against the owner/operators of these facilities.

Dangerous conditions, slave wages

Small residential care facilities are less regulated than nursing homes in California because they ostensibly serve a population less in need of skilled care. But since they are also cheaper, market forces push the limits of training, need and cost. Profoundly disabled people can end up in less intensive, less skilled and less regulated environments. That’s dangerous for the residents. It’s also dangerous for overwhelmed caregivers.

Between 2011 and 2017, workers in residential care facilities filed 526 wage theft claims with the California Labor Commissioner’s Office. Of the cases that went to hearing, workers were found to be owed $2.5 million dollars. Approximately seventy-one percent of the judgment amounts due remained unpaid at the time of an investigation in 2017.

The workers tell tales of shocking abuse. Adat Shalom Board and Care, for example, reportedly required live-in caregivers to be on call 24 hours a day but did not grant them overtime or provide rest and meal breaks.

The caregivers were responsible for monitoring and caring for elderly residents and hospice patients, many of them suffering from Alzheimer’s or dementia. They were paid fixed amounts ranging from $1,500 to $1,800 per month, which amounted to 2.40 to $2.88 per hour. Pay stubs withheld key information such as hourly pay rates and the total number of hours worked.

Caregivers in similar situations were required to sleep on the floor beside patient beds or in makeshift sleeping areas set up in hallways or garages. They were not provided with the training and supervision necessary to deal with the acute levels of care needed by residents. Sometimes, they apparently had no training, at all.

Workers Easy to Victimize

The patients are largely helpless or nearly so, but the workers are easy to victimize, too. The threat of retaliation prevents many caregivers from speaking up about the poor working conditions. Threats of deportation hang over the heads of workers without proper working papers. With increasing enforcement efforts, immigrant caregivers are even more reluctant to complain about wages and working conditions.

In Northern California, Filipino owners dominate the residential care industry, hiring predominately Filipino workers through social networks of other Filipino immigrants. The promise of legal status becomes a method of labor control within this vulnerable population.

Fair Day’s Pay Act

Signed by former Governor Jerry Brown in 2015, the Fair Day’s Pay Act was intended, in part, to add to the state’s arsenal of enforcement options. Section 8 of the Act amends the California Labor Code to provide that:
“If an employer in the long-term care industry that is also required to obtain a license from the State Department of Public Health or the State Department of Social Services pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code, is found to be in violation of Section 238, the State Department of Public Health or the State Department of Social Services may deny a new license or the renewal of an existing license for that employer.”

In other words, if a residential care facility is found to be underpaying workers, it can lose its license to do business in the state.

That provision of the law does not appear to be enforced, however, because of interpretations of Sections of the California Health and Safety Code. Sections of that code cite “[c]onduct which is inimical to the health, morals, welfare, or safety of either an individual in or receiving services from the facility or the people of the State of California” as a reason for revocation of the facility’s license. That section of the law appears to focus primarily on the needs of the patients.

It is a false dichotomy, of course, because meeting the needs of the patients depends on caregivers, who can hardly be expected to do good work without pay, training and rest. Some suggest that the solution lies in an amendment to the California Labor Code, which makes explicit the link between patient care and worker welfare.

There are success stories in which residential care workers have been able to collect on overtime and back pay judgments or the settlements that employers find expeditious. Workers who bring California unpaid wages lawsuits against their residential care employers should be careful to discuss the likelihood of payment as well as the likelihood of legal success with their attorneys.