Domestic Worker Bill of Rights Extends Wage Order Protections to Caregivers

Our articles “Caring for Caregivers” and “Private Household Workers in California” caution that misunderstandings about California’s rules for household employees can be expensive.   California’s Domestic Worker Bill of Rights (DWBR), effective January 1, 2014,  drives home the need to properly pay the wages and to comply with the hours and working conditions requirements for certain household occupations.

The DWBR entitles nannies and other caregivers to overtime pay.

Assemblymember Tom Ammiano, the author of the new law, states, “Domestic workers are among the most isolated and vulnerable workers in the state.  Historically, domestic workers who cared for property were given full wage and hour protections but those who cared for human beings were not.  Personal attendants in California were excluded entirely from overtime coverage under [existing law].” 

California’s Industrial Welfare Commission (IWC) regulates the wages and hours of workers through a series of “Wage Orders.” Wage Order 15 covers employees engaged in so-called “household occupations,” services related to the care of people or premises in a private household. 

Under Wage Order 15, “personal attendants” include nannies, babysitters and certain caregivers who work in a private household to supervise, feed, or dress a child or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision.  (Wage Order 15 vaguely directed that “personal attendant” status only applies when “no significant amount of work” outside of such caregiving duties was required.  The DWBR now specifies that “no significant amount of work” means that work other than “supervising, feeding or dressing” does not exceed 20 percent of the total weekly hours worked.)

Wage Order 15 excluded such personal attendants, including live-in workers, from receiving overtime.  Beginning January 1, 2014, the DWBR overrides that wage order, providing that personal attendants “shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the workweek.”

This new law will be temporary, ending in 2017 if the Legislature fails to extend them.

The DWBR does not cover, among others, the employer’s close family members; babysitters who are under 18 or casual babysitters (i.e. someone who babysits a minor child on an irregular or intermittent basis and whose vocation is not babysitting).

Improperly calculated overtime and substandard clock-in and clock-out systems and rules can create expensive challenges.   Thus, personal attendant employers should take action including:

• Define in a written agreement the terms of the caregiver’s employment, including duties and compensation.  The agreement should specify the “at will” nature of the relationship, meaning the caregiver can resign or be released from employment at any time, with or without cause or advance notice.  It is also a good idea to specify that a live-in caregiver will vacate the premises promptly when employment ends;
• Pay the caregiver an hourly rate and agree in advance on the workweek schedule;
• Pay the caregiver at least minimum wage and pay all overtime for all “hours worked,” defined by law as any time an employee is “suffered or permitted to work.”  In other words, all time the caregiver is on duty; and
• Have the caregiver maintain a written log of all daily hours worked with the caregiver confirming in writing its accuracy each day.

For more information concerning an employer’s obligations under California or federal wage and hour laws, contact one of our attorneys Tim Bowles or Cindy Bamforth.