Q: I WORK as a “caregiver” for a disabled senior at a private residence. In addition to caring for the senior, I also cook, clean the house, and do the laundry. I work 5 to 6 days a week, at least 12 hours per day and as much as 14 hours per day. My employer pays me a salary every two weeks, regardless of how many hours in the week I worked. Am I entitled to overtime pay?
A: Under California law, personal attendants, which include caregivers and nannies working in private households, are exempt from overtime law. However, some persons employed as “caregivers” do not simply perform care-giving duties. They also perform housekeeping duties. If the “caregiver” performs significant household duties, then overtime must be paid.
The Industrial Welfare Commission’s Wage Order 15 defines two groups of persons who may be employed in a private household: general household occupations and personal attendants.
“Household occupations” means all services related to the care of persons or maintenance of a private household or its premises by an employee of a private householder. These occupations include the following: butlers, chauffeurs, companions, cooks, day workers, gardeners, graduate nurses, grooms, house cleaners, housekeepers, maids, practical nurses, tutors, valets, and other similar occupations.
“Personal attendants” include baby sitters and any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision.
The distinction between household occupation and personal attendant is important because those who work primarily as personal attendants are currently not entitled to overtime compensation. On the other hand, those who are employed in household occupations are entitled to the minimum wage and overtime requirements of the law.
The employee is a “personal attendant” if his or her duties are limited to “supervising, feeding, or dressing” a person. But if an employee’s duties include “any significant amount” of work that does not involve supervising, feeding, and dressing, then the employee may not be a personal attendant and may, therefore, be entitled to overtime pay.
What does “significant amount of work” mean? California’s labor department defines the term using the same quantitative test as the federal government, which is 20%, i.e., significant amount of work constitutes 20% or more. However, California law often uses the qualitative or duties test. This means that California law requires that performance of any significant amount of work other than supervising, feeding or dressing will defeat the exemption. In other words, any cooking, cleaning, laundering, shopping, etc., will be counted as other work. If the “caregiver” regularly performs these other types of non-care-giving work, then overtime must be paid.
Correctly distinguishing between the two types of work actually performed for the private householder will make a difference in the caregiver’s ability to recover overtime. A “caregiver” who had spent years doing household and care-giving work may be due significant back wages. It is wise for such an employee to consult with an experienced employment attorney so their rights are better protected.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum-a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.