Caregivers and Personal Attendants under the Domestic Worker Bill of Rights and Fair Labor Standards Act
The overtime laws for caregivers, personal attendants, child care workers, or other types of attendants can be complicated. This page will discuss the basics of this type of work.
There are a wide variety of care provider jobs, from child care workers to those that work with the disabled or handicapped as well as the aged. The positions can require that the employee live on-site at the facility or only report to work; each arrangement has unique issues.
Before we get into the various laws, I want to state what is NOT covered in this page. If you work as a Registered Nurse, you are entitled to overtime, so you do not need to read this page. If you work as a personal assistant, cook, maid or another type of personal servant, you are likely entitled to overtime, but these positions are not covered on this page.
Another key issue is that caregivers are covered by both California and federal law. Each law has different provisions and different exemptions. You always get the better of the two laws. For instance, some personal attendants only get overtime after 45 hours in a week under California law, but federal law requires they get overtime after 40 hours in a week. In that case, federal law applies and overtime would be due after 40 hours in the week. As a note, the California Labor Board can only enforce California law and the federal Department of Labor only enforces federal law. In many cases, you are covered by both -- and it is best to speak with an attorney who can explain what your rights are.
Nothing in the foregoing discussion is meant to be legal advice and does not serve to establish an attorney-client relationship. Any statements, on this page or elsewhere, are not guarantees of any outcome.
The most important rule of overtime law is that everyone is entitled to overtime unless they meet an exemption. Thus, while there are many types of jobs in this field, and it is not possible for me to cover every one of them, if your job is not listed or does not fit inside one of these exemptions, you are likely entitled to overtime. The following will break down the various types of exemptions based on different factors. The most important factor is whether you work in a private household or in a care facility.
A private household is any person's private home. Specifically, it does NOT include any type of group home, old-age home, or other property operated as a business to care for people. It also does not include any type of not-for-profit institution, even if the facility was once used as a residential house. That is, the nature of the business determines whether or not you are employed in a "private household," and not the structure of the building. For instance, if a private residence is converted into a home for the disabled and operated by a business or non-profit organization, you are not employed in a "private household," and this section does not apply to you.
If you work in a private household, there are significant differences between federal and California law, and it is necessary to look at both to see if either one applies.
If your employer is a third party agency, then you are automatically entitled to overtime under federal law (overtime past 40 hours in a week). This is true, even if you live on the premises. You are also entitled to overtime if you are "jointly" employed by a third party agency -- that is, an agency lists both itself and the private individual as employers.
If you are employed by a private household, and you live on the premises, then you will not be covered by federal overtime. But check what type of work you perform to see if you are entitled to California overtime.
If your work is limited to feeding, dressing or supervising a child, aged, or disabled person, who because of their age or disability needs supervision, you are not entitled to overtime. An exact list of every single duty that qualifies as "feeding, dressing, or supervising" a person is not possible. However, the following are generally accepted as falling within this exemption:
A big question with the above list is whether general house cleaning chores qualify as exempt work or not. In general, light housekeeping and meal preparation duties will qualify as exempt work, if they are necessary for the person to live independently -- services that you would typically hire a "maid" to perform will not. In addition, if the amount of actual cooking and "light" cleaning exceeds 20% of the total work time, the exemption will be lost and you will be entitled to overtime. If you spend more than 20% of your time on nurse-like duties such as giving medication, taking temperatures, checking pulse, etc, then you are also entitled to overtime.
Overtime for personal attendants under California law is time and one-half for work past 9 hours in a day or 45 hours in week.In addition, except for babysitters, you are entitled to be paid at least minimum wage as a personal attendant, even if you are not entitled to overtime.
If you do not live in the household, then the exact work that you perform needs to an analyzed under both federal and California law to see if you are entitled to overtime.
California law uses the same definition of "personal attendant" discussed above to determine whether you are entitled to overtime whether you live on the premises or not. As noted above, a "personal attendant" is employed to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. If an employee spends more than 20% of his or her time on other duties, then the exemption will be lost -- as discussed above.
Unlike California law, federal differs significantly if you do no live on the premises. If you do not live on the premises, you will you be entitled to federal overtime (after 40 hours in the week) unless you meet the "Companionship Exemption." The Companionship Exemption only applies to people providing fellowship and protection for an elderly person or person with an illness, injury, or disability who requires assistance in caring for himself or herself.
First, you should note that the federal exemption does not apply to babies and children unless they have a disability, injury, or illness that requires assistance. Normal "babysitting" functions are not covered by this exemption.
Second, the fellowship and protection services under the federal exemption are different than the "personal attendant" duties under California law. The provision of fellowship means to engage the person in social, physical, and mental activities, such as conversation, reading, games, crafts, or accompanying the person on walks, on errands, to appointments, or to social events. The provision of protection means to be present with the person in his or her home or to accompany the person when outside of the home to monitor the person's safety and well-being.
The main difference is that "fellowship and protection" cannot consisted of more than 20% of direct "care" type of services -- dressing, grooming, feeding, bathing, toileting, and transferring/transporting the individual or meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care.
That is, the federal exemption applies when "care" services such as feeding and dressing are 20% or less of the total time. While California's exemption only applies when feeding, dressing, and supervising are in excess of 20%. As you can see, the main determination is the "supervising" part. Under federal law, fellowship includes things such as engaging the person in social, physical, and mental activities, such as conversation, reading, games, crafts, or accompanying the person on walks, on errands, to appointments, or to social events. Provided the person would not generally be able engage in such activities independently, they are also covered as "supervising" under California law. However, as a practical matter, the "care" duties -- feeding, dressing, meal preparation, etc. -- typically amount to more than 20% of the time. In that case, the employee is exempt from California overtime but covered by federal overtime.
Please note that if you call or write to the California Division of Labor Standards Enforcement they will only tell you about California law.
A public facility is anything that is not a private household. This includes rooming houses, hospitals, sanitariums, houses for the aged, disabled, or handicapped, child care centers, recreational camps, or any other type of care facility. If you work in a public facility, you will be entitled to overtime after 8 hours in a day or 40 hours in a week unless you are in one of the following occupations:
Even if you are entitled to overtime, your employer may have instituted an Alternative Work Week Schedule. If an employer held an election that followed strict rules, the employer can institute a work schedule such as 4 days of 10 hours each or, in the health care industry, 3 days of 12 hours each. If your employer has such a schedule in place, then they need not pay daily overtime until after the scheduled number of hours. However, this would not affect the requirement to pay overtime after 40 hours in a week.
The election could have taken years before you started your employment at the company, and you don't have any right to have your vote counted once the election is closed. If your employer does have such a schedule, it must be registered with the Division of Labor Statistics and Research. You can look up whether your employer has such a policy in place here. If they are not registered on that list, then the election likely was not valid and it will not be upheld even if the company has a published policy regarding the work schedule.
The care provider industry is rampant with labor violations. Many people work long hours without proper pay. If you feel that you are entitled to overtime and are not getting it , you should contact me immediately.
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