A new California law just changed the ball game for in home care for the elderly who are unable to care for themselves.
What happens when your parent would like to remain in their own home but they cannot care for themselves and need someone to care for their personal needs like eating, bathing, using the toilet or otherwise just moving around? If you (or your parent) chooses to hire one or more individuals to care for your parent then the caregivers are most likely your parent’s employee. How do you/your parent pay that employee? It’s one thing if they spend 8 hours caring for your parent and leave (but then who cares for your parent the other 16 hours?). But what if your parent requires 24/7 care? What if the employee “lives in” with your parent?
California law generally requires payment of overtime for all hours worked in excess of 8 hours in a day or 40 hours in a workweek.
Prior to 12/31/2013, an exception to this general rule existed for live in “personal attendants” who provided 24/7 live in care in a residential household under Wage Order 15. Wage Order 15 used to allow the employer of a personal attendant to pay minimum wage at straight time only irrespective of hours worked in a workday or workweek (i.e. no overtime was required). The California legislature eliminated this exception as of 1/1/2014.
As of 1/1/2014, employees who are “childcare providers, caregivers of people with disabilities, sick, convalescing, or elderly persons,” i.e. “personal attendants” must be paid one and one-half their regular rate of pay for all hours worked in excess of 9 hours in any workday or in excess of 45 hours in any workweek.
The new law makes no mention of whether there is any limit to working hours for live in personal attendants or personal attendants who work 24 hour shifts thereby allowing uncertainty to reign in this area. For example, if a personal attendant is scheduled for 24 hours and cannot leave the personal residence where they work must they be paid for all 24 hours, including 15 hours at the overtime rate of one and one-half the regular rate of pay, or may the employer carve out 8 hours of “sleep time” so long as that time is uninterrupted, and thereby pay only 7 hours of overtime?
Arguably the “personal attendant” is under the control of the employer because they cannot leave the residence if the personal attendant is the only one there with the person being cared for. That would make all 24 hours compensable, 9 at the regular rate and 15 at the overtime rate.
On the other hand, if they are provided a place to sleep and have 8 hours of uninterrupted time that they can use for their own purposes (including sleeping) is that compensable time? If it’s not, only 16 hours out of a 24 hour period need be compensated, 9 at the regular rate and 7 at the overtime rate.
Whether to pay for those 8 hours which will be at the overtime rate obviously makes a big difference, but the California legislature has left this big question unanswered when they could have seized the opportunity to clarify the law in this area.
In the meantime, it seems only those who can afford what appears to be the prohibitive cost of in home care will have “personal attendants” whether on a 24/7 care or some more limited basis.