Employing Private Caregivers

California regulates the wages and hours of workers through a series of “Wage Orders.” Wage Order 15 (WO 15) covers employees engaged in so-called “household occupations,” including “personal attendants.”

Personal attendants are 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.  WO 15 directs that an attendant must not perform a “significant amount” of other duties, e.g., cleaning or doing laundry, without defining “significant.”

The Domestic Worker Bill of Rights (DWBR), effective January 1, 2014, remedied that omission, setting the “significant” other-work prohibition at more than 20 percent of the attendant’s total weekly hours.

The DWBA also added overtime pay for some, but not all, WO 15 personal attendants, including live-in workers, after 45 hours/week or nine hours/day. Attendants who are close family members, babysitters under 18 and “casual” babysitters (those sitting for a minor child on an irregular or intermittent basis and not in the business of babysitting) are not entitled to overtime.

Federal law complicates the picture, requiring third-party employers such as staffing agencies to pay overtime to “companions” after 40 hours/week.  A companion is someone who provides: (a) fellowship, and (b) protection to an elderly, ill, injured, or disabled person for at least 80 percent of the workweek and provides “care,” i.e., assistance with daily living activities, no more than 20 percent of the time.

The federal rule does not apply to companions whom a patient or the patient’s family or guardian engages directly.

The potential conflict between these two sets of rules makes paying overtime to any California domestic worker qualifying as a personal attendant or companion after nine hours in a day or 40 hours in a week the prudent course of action.

Take-Aways:  Uninformed private and agency employers can become ensnared in legal complaints.  We have even represented a 97-year-old woman facing an unpaid overtime claim by a caregiver.  Thus, personal attendant employers should take appropriate action including:

• Have a written employment agreement with the caregiver specifying expected or scheduled work hours, duties, compensation and the “at-will” nature of the relationship (i.e., the caregiver can resign or be released from employment at any time, with or without cause or advance notice).  For live-in caregivers, the agreement should include the person’s obligation to vacate the premises promptly when employment ends for any reason.

• Have the caregiver enter all working hours and meal start and end times in a written log, confirm its accuracy each day, and promptly clear up any discrepancies.

• Pay the caregiver by the hour at least twice a month, at a rate agreed in advance.

• Pay the caregiver at least minimum wage for all “hours worked,” defined by law as any time an employee is “suffered or permitted to work,” i.e., all time the caregiver is on duty.  This may include the hours the caregiver is sleeping.

• Pay all earned overtime.

• Seek and obtain qualified attorney guidance on sound documentation and full legal compliance.

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• The Basics of Overtime – Five Rules for California (April 27, 2018)
• The Need for Written Employment Agreements –Well-Drafted Contracts Eliminate Uncertainty and Ambiguity (March 30, 2018)
• Cautionary Tales Episode 7 – Paying Live-In Caregivers “Daily Flat Rate” Can Be a Very Expensive Mistake (November 24, 2017)

Helena Kobrin
October 8, 2021