Caregiver Versus Personal Attendant - Wages and Benefits

Workers Comp Legal Advice - Caregiver Versus Personal Attendant - Wages and Benefits

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Are you a caregiver or a personal attendant who works in a hidden household or home? As a household laborer either as a caregiver or personal attendant, are you entitled to minimum wage? Over-time pay? Other benefits?

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Workers Comp Legal Advice

If hired directly by an personel or family, your benefits are different from one who is hired by a hidden firm or branch and governed by normal employment laws: applicable federal and state statutes.

A live-in laborer as opposed to a live-out laborer is branch to special work rules discussed below.

A caregiver or "care custodian" is defined by Section 15610.17 of the California Welfare and Institutions Code as:

"... An administrator or an laborer of...public or hidden facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the maintain staff and maintenance staff."

A "personal attendant" is not entitled to overtime compensation, unless: (1.) he or she is a live-in employee; or (2.) he or she does normal household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or (3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.

In these three instances, the household laborer is no longer considered a "personal attendant" and is entitled to overtime pay. Otherwise, light house retention and cooking chores qualify as work exempt from overtime compensation.

Personal Attendant As Defined In Ca Iwc Wage Order 15:

Section 2(J) of the California commercial Welfare Commission (Iwc) Wage Order No. 15-2001 defines "personal attendant" as follows:

"'Personal attendant' includes baby sitters and means any man employed by a hidden householder or by any third party boss recognized in the health care business to work in a hidden household, to supervise, feed or dress a child or man who by suspect of advanced age, physical disability, or thinking deficiency needs supervision. The status of 'personal attendant' shall apply when no important number of work other than the foregoing is required."

Indeed, the California branch of Labor Standards enforcement (Dlse) has historically adopted the acceptable used in the federal regulations, 29 C.F.R. 552.6 on "companionship services," to wit:

"...(T)he term 'companionship services' shall mean those services which provide fellowship, care, and security for a man who, because of advanced age or physical or thinking infirmity, cannot care for his or her own needs. Such services may consist of household work associated to the care of the aged or infirm man such as meal preparation, bed making, washing of clothes, and other similar services. They may also consist of the operation of normal household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked."

Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:

"The term 'companionship services' does not consist of services associated to the care and security of the aged or infirm that require and are performed by trained personnel, such as registered or practical nurse."

Thus, the acceptable duties of a "personal attendant" involve activities of daily living such as getting in or out of bed, showering, bathing, using a toilet. A "personal attendant's" duties of "supervising" would consist of assistance in obtaining healing care, making ready meals, shopping for personal items or groceries, using a telephone, even managing money.

As long as any normal housekeeping duties performed do not exceed 20% of the weekly working time spent by a "personal attendant," he or she is exempted from the protections of California Wage Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But prior to 2001, a classification as "personal attendant" also excluded minimum wage in California.

This overtime recompense exemption also applies to "personal attendants" as well as other household workers such as caregivers, spending 20% or less of their working time doing normal household work, who are employed by an branch and sent to hidden households to work.

Benefits Of Household Workers:

A. Minimum Wage:

The state minimum wage covers all employees, including household workers (live-in employees, caregivers, and "personal attendants") but excluding legitimate independent contractors. The current California minimum wage is .00 per hour since January 1, 2008, a 6.7% growth over the former .50 minimum wage.

There are some factors that determine either a man is an independent undertaker of a package deal or not. But the primary factor is operate by the boss of the means, manner and outcome of the job. An independent undertaker of a package deal runs his or her own household services business, has his or her tools and materials, and controls the manner and outcome of the job.

Independent contractors are not covered by minimum wage and overtime recompense statutes.

B. Overtime Pay:

Household workers who are not live-in employees, as well as "personal attendants" who do normal household work that exceeds 20% of their weekly working time, are entitled to overtime compensation, consisting of one and one half times their regular rate of pay for working more than eight (8) hours in a day, or more than (40) hours in a week.

Live-in employees must be paid one and one half times the regular rate for all hours worked over twelve (12) hours (instead of over eight (8) hours) in one work day for five (5) workdays. On the sixth and seventh day, live-in employees must be paid double the regular rate for all hours worked over (9) hours per day. See California Iwc Wage Order No. 15-2001 3(A)-(B) (8 Cal Code Regs. 11150(3)(A)-(B)).

Under federal law, 29 U.S.C. 213(a)(15), "any laborer employed on a casual basis in domestic aid employment to provide babysitting services or any laborer employed in domestic aid employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" is granted exemptions from minimum wage and overtime pay.

C. Other Benefits Of Household Workers:

1. Hours And Days Of Work:

A live-in laborer is entitled to at least twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work should not exceed twelve (12) hours, except that: (a) the laborer must have at least three (3) hours free of duty during the 12 hours span of work; and (b) the laborer required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours must be paid one and one-half times the regular rate of pay for all such hours worked. See California Iwc Wage Order No. 15-2001 3(A).

Moreover, no live-in laborer shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency. See California Iwc Wage Order No. 15-2001 3(B).

2. Rest And Meal Periods:

Household workers are entitled to a ten-minute paid rest break for every four (4) hours of work under California Iwc Wage Order No. 15-2001 12(A), and a thirty-minute meal period of every five (5) hours worked, just like others kinds of employees, under California Iwc Wage Order No. 15-2001 11(A).

Otherwise, the boss shall pay the laborer one (1) hour of pay at regular rate for each workday that the rest period, or the meal period is not provided. See California Iwc Wage Order No. 15-2001 12(B), 11(D). But "personal attendants" are not granted rest and meal periods.

3. Meal And Housing Deductions From Wages:

The boss may subtract meal and housing due from the employee's paycheck if: (a) the laborer precisely uses the meals and is provided with housing; (b) meals and housing are used as wage to comply with the minimum wage; and (c) the laborer executes a voluntary, written agreement, crediting meals and housing towards minimum wage.

Meal credit may be deducted as follows: breakfast - .45; lunch - .35, and evening meal - .50. Housing may also be credited at .75 per week for a room (.20 if shared). See California Iwc Wage Order No. 15 - 2001 10(C).

In summary, either you are a caregiver or a "personal attendant" entitled to particular wages and benefits in California or in other states depends on either the normal household work you do exceeds 20% of your total work time.

(The Author, Roman P. Mosqueda, practices wage and hour law in California.

This description is not legal advice, and no attorney-client connection is formed with the reader. For specific labor law issues, consult a competent attorney.)

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