Are you a caregiver or personal assistant working in a home or private home? As a domestic worker, either as a caregiver or personal assistant, are you entitled to a minimum wage? Do I pay for overtime? Other benefits?
If hired directly by an individual or family, your benefits are different from those of a person hired by a private company or agency and are governed by general labor laws – applicable federal and state statutes.
A resident employee rather than a resident employee is subject to the special employment rules described below.
California Welfare and Institutions Code Section 15610.17 defines a caregiver or “custodian of care” as:
“… an administrator or an employee of … public or private facilities or agencies, or persons who provide care or services for the elderly or dependent adults, including members of the support staff and maintenance personnel.”
A “personal assistant” is not entitled to overtime compensation, unless: (1.) he is a resident employee; or (2.) perform general household tasks (cleaning, cooking, feeding, dressing, or supervising) that exceed 20% of total work time; or (3.) performs nurse-like tasks (checking pulse, taking temperature, administering medication) more than 20% of total work time.
In these three cases, the domestic worker is no longer considered a “personal assistant” and is entitled to overtime pay. Otherwise, light housekeeping and kitchen chores qualify as work exempt from overtime compensation.
Personal Assistant as defined in CA IWC Salary Order 15:
California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 Section 2 (J) defines “personal assistant” as follows:
“‘Personal attendant’ includes babysitters and means any person employed by a private head of household or any recognized third party employer in the health care industry to work in a private home, to supervise, feed or clothe a child or person who by reason of advanced age, physical disability or mental handicap requires supervision. The status of ‘personal assistant’ will apply when a significant amount of work other than the above is not required. “
In fact, the California Division of Labor Standards Compliance (DLSE) has historically adopted the standard used in federal regulations, 29 CFR 552.6 on “company services,” namely:
“… (T) he term ‘companion services’ shall mean those services that provide companionship, care, and protection to a person who, due to advanced age or physical or mental illness, is unable to meet his or her own needs. Services may include household chores related to caring for the elderly or infirm, such as preparing meals, making the bed, doing laundry, and other similar services. They may also include performing general household chores: as long as such work is incidental, it is that is to say, that it does not exceed 20 percent of the total weekly hours worked “.
Federal regulations, 29 CFR 552.6, supra, further clarify that:
“The term ‘companion services’ does not include services related to the care and protection of the elderly or infirm that require and are performed by trained personnel, such as registered or practical nurses.”
Therefore, the acceptable duties of a “personal assistant” include activities of daily living, such as going to bed or getting out of bed, showering, bathing, using the toilet. The duties of a “supervisory” “personal assistant” would include assisting in obtaining medical care, preparing meals, buying personal or grocery items, using the telephone, and even managing money.
As long as the general cleaning duties performed do not exceed 20% of the weekly work time employed by a “personal assistant,” he or she is exempt from the protections of California Wage Order No. 15-2001, as compensation for overtime, etc. except the minimum wage. But before 2001, a classification like “personal assistant” also excluded the minimum wage in California.
This exemption from overtime compensation also applies to “personal assistants,” as well as other domestic workers, such as caregivers, who spend 20% or less of their working time on general domestic work, who are employees of a agency and sent to work in private homes. .
Benefits of domestic workers:
A. Minimum wage:
The state minimum wage covers all employees, including domestic workers (internal employees, caregivers, and “personal assistants”), but excludes legitimate independent contractors. California’s current minimum wage is $ 8.00 per hour as of January 1, 2008, an increase of 6.7% over the previous minimum wage of $ 7.50.
There are several factors that determine whether a person is an independent contractor or not. But the main factor is the control by the employer of the means, the form and the result of the work. An independent contractor runs his own home service business, has his tools and materials, and controls the form and result of the work.
Independent contractors are not covered by the minimum wage and overtime compensation statutes.
B. Overtime pay:
Domestic workers who are not internal employees, as well as “personal assistants” who perform general household tasks that exceed 20% of their weekly working time, are entitled to overtime compensation, consisting of one and a half times their regular salary. for working more than eight (8) hours in a day, or more than (40) hours in a week.
Internal employees must be paid one and a half times the regular rate for all hours worked for twelve (12) hours (instead of more than eight (8) hours) in a work day for five (5) business days. On the sixth and seventh days, resident employees must receive double the regular rate for all hours worked during (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 USC 213 (a) (15), “any employee employed occasionally in a domestic service job to provide child care services or any employee employed in a domestic service job to provide companionship services to persons who (due to age or illness) are unable to care for themselves “are granted exemptions from minimum wage and overtime pay.
C. Other benefits of domestic workers:
1. Hours and days of work:
A resident employee is entitled to at least twelve (12) consecutive hours off duty during each twenty-four (24) hour workday, and the total span of hours for a workday must not exceed twelve (12) hours. , except that: (a) the employee must have at least three (3) hours off duty during the 12-hour period of work; and (b) the employee who is required or permitted to work during scheduled off-duty hours or for 12 consecutive hours off duty must receive one and a half times the regular rate of pay for all such hours worked. See California IWC Wage Order No. 15-2001 3 (A).
In addition, no resident employee shall be required to work more than five (5) days in a 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:
Domestic workers are entitled to a ten minute paid break for every four (4) hours of work under California CBI Wage Order No. 15-2001 12 (A), and a thirty minute meal period of every five (5) hours. worked, like other types of employees, under Wage Order No. 15-2001 11 (A) of the California CBI.
Otherwise, the employer shall pay the employee one (1) hour of pay at the regular rate for each day of work that the rest period or meal period is not provided. See California IWC Wage Order No. 15-2001 12 (B), 11 (D). But “personal assistants” are not given rest and meal periods.
3. Deductions from wages for meals and lodging:
The employer may subtract the food and housing credits from the employee’s paycheck if: (a) the employee actually uses the meals and is provided housing; (b) meals and housing are used as wages to meet the minimum wage; and (c) the employee signed a voluntary agreement in writing, crediting meals and housing at the minimum wage.
The meal credit can be deducted as follows: breakfast – $ 2.45; lunch – $ 3.35 and dinner – $ 4.50. Housing can also be credited at $ 31.75 per week for a room ($ 26.20 if shared). See California IWC Wage Order No. 15-2001 10 (C).
In short, whether you are a caregiver or “personal assistant” entitled to particular wages and benefits in California or other states depends on whether the general domestic work you do exceeds 20% of your total work time.
(The author, Roman P. Mosqueda, practices wage and hour law in California.
This article is not legal advice and an attorney-client relationship is not formed with the reader. For specific labor law questions, consult a competent lawyer).