[COLUMN] Caregivers must be paid overtime by Los Angeles County as joint employer

THE State of California, in partnership with various counties throughout the state, administers an In-Home Supportive Services (“IHSS”) program to allow low-income elderly, blind, or disabled individuals to hire a caregiver to help them with daily activities, such as housework, meal preparation, and personal care. The recipients of IHSS assistance retain the right to hire, fire and supervise the work of the caregiver, including the right to set work schedules and approve the caregiver’s timesheets.

However, the caregiver submits those timesheets directly to the government, which issues their paychecks. Moreover, a caregiver can only be paid under the IHSS program if he or she attends an in-person orientation and training given by the county government, and signs state-issued forms. The county government maintains a registry of approved caregivers, coordinates background checks for such individuals, and provides training to both the caregivers and IHSS recipients.

A recent decision from the Ninth Circuit Court of Appeals emphasizes that this economic and structural control was enough to make the Los Angeles County Department of Public Social Services a joint employer liable for unpaid overtime owed to caregivers employed under the IHSS program.

Under both federal and California law, an employee may have more than one employer responsible for compliance with all applicable wage-and-hour laws. In the Ninth Circuit case of Ray v. L.A. County Department of Public Social Services, this means that IHSS caregivers could have theoretically pursued payment of earned overtime wages from either the low-income recipients of IHSS care or the government agency that administers the IHSS program. But in light of the limited resources of low-income recipients of the IHSS program, it is unlikely that a caregiver who is owed earned overtime can recover it from the direct recipients of their care. Any realistic recovery of unpaid overtime would need to come from the same public agencies that pay the regular wages of these caregivers.

California’s IHSS program serves hundreds of thousands of low-income recipients of In- Home Supportive Services, with more than 200,000 in Los Angeles County alone. The Ninth Circuit’s decision to hold the county government liable for IHSS caregivers’ earned overtime recognizes the value of such services, and affirms the caregivers’ rights to be properly compensated for their work.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com. [For more than 25 years, C. Joe Sayas, Jr., Esq. successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, selected as Super Lawyer by the Los Angeles Magazine for 11 years, and is a past Presidential Awardee for Outstanding Filipino Overseas.]

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