Introduction

Working as a caregiver in a private home, an assisted living facility or nursing home is hard work. If this is your job, you probably work long hours and return home physically and emotionally drained. You may provide 24-hour, live-in help to the elderly or incapacitated.

Many residential private households, residential care facilities and nursing homes ignore overtime laws. These violations can deprive you of significant wages totaling thousands and even hundreds of thousands of dollars.

If you are a caregiver employed by someone who refuses to follow wage and hour laws, you may be entitled to significant compensation.

Reading up on your rights is the first step toward claiming what you are due. Discussing the matter with an experienced attorney at Chaleff Rehwald is the next and most important step.

Wage Theft

When employers refuse to pay caregivers the legally required minimum or overtime wages, it is a form of wage theft. The employers are essentially stealing wages from workers who care for the elderly.

Thankfully, California law sets minimum requirements for a caregiver’s wages and working conditions. These laws include a minimum wage and overtime in most circumstances. An employer has no right to pay an employee less than the legally required minimum or overtime wages and anyone who does engages in wage theft.

Wage theft takes many forms and may include failing to pay for sleep or “on call” time, paying a weekly or daily salary that is too low or classifying an in-home caregiver as an “independent contractor” to circumvent California’s wage and hour laws.

California provides greater protection to caregivers than exists in most other states. For instance, the minimum wage in California is currently $10.50 per hour, and will increase incrementally to $15 by 2022. Cities can enact higher minimum wages. Caregivers who are victims of wage theft can claim the compensation that is legally due.

The Domestic Workers’ Bill of Rights (In-Home Caregivers/ Personal Attendants)

Until very recently, most caregivers working in private households were exempt from overtime payments under the so-called “personal attendant” overtime exemption of Wage Order 15. What this means is that previously private households could force a caregiver to work 24 hours per day and only pay that caregiver the minimum wage for every hour he or she worked. In reality, very few private households paid even this modest sum.

On January 1, 2014, California enacted the Domestic Worker Bill of Rights (DWBR). The DWBR mandates overtime payments for personal attendants. This new law provides that an employer cannot hire personal attendants to work more than nine hours in a day or 45 hours in a workweek without paying overtime.
Overtime under the DWBR is set at one and one-half times the employee’s regular rate of pay. That means that if you are an in-home caregiver, you are entitled to 150% of your hourly wage for every hour you work over nine hours in any given day, and all hours you work beyond 45 hours in a week.

Now that the California legislature has created the right to overtime for personal attendants, an in-home caregiver who is not paid the required overtime wages can sue. You can recover not just the overtime you are due, but also attorney’s fees and costs incurred in the lawsuit. It is also possible to recover interest and penalties if you are not properly paid overtime compensation.

Caregivers Who Work in Facilities

Caregiver overtime law is highly complex. In fact, an entirely di erent set of laws apply to a caregivers who work in residential care facilities and nursing homes for the elderly. These caregivers have always been entitled to overtime under California law. These caregivers must be paid overtime for all hours they work in excess of 8 hours in a day or 40 hours in a week. In addition, they are generally entitled to double time payments for all hours worked in excess of 12 in any single day and may be entitled to meal and rest breaks. The rules for sleep time, on-call time and live-ins are also different.

Many care facilities also fail to pay overtime to caregivers and engage in other forms of wage theft. If you think that you have been the victim of wage theft, it is very important to contact the attorneys at Chaleff & Rehwald who are familiar the laws in this area.

Typical Violations for All Types of Caregivers

  • Day Rates or Weekly Salaries: Many employers pay caregivers with pre-determined day rates or weekly salaries. However, since caregivers are not exempt employees, they must be paid an hourly wage. O en, the day rates or salaries average out to far less than minimum wage. Even then, these forms of payment only compensate a caregiver for regular, non- overtime, hours worked. This means the employer has paid the caregiver nothing for his or her overtime hours. If you are paid on a salary or day rate basis and work long hours, you may have a valuable claim.
  • Misclassification as an Independent Contractor: Few caregivers actually qualify as independent contractors. Still, employers often call caregivers independent contractors to avoid paying minimum and overtime wages. This is a form of wage theft and the law will invalidate an improper independent contractor arrangement, even if you signed an independent contractor agreement.
  • Deducting Sleep Time From 24-Hour Shifts: Private households cannot deduct sleep time from hours worked under any circumstances. Facility employers may deduct sleep time in certain, very limited circumstances. If your employer deducts sleep time from your work hours you may have a very valuable claim.
  • Deducting Room and Board: An employer may try to convince you that they don’t have to pay minimum and overtime wages because they are providing you with room and board. This
    is simply false! An employer can only deduct limited amounts of money from your paycheck each month for room and board, and then only if you agree to such deductions in writing.
  • Threatening to Deport You: Many caregivers fear coming forward because they are undocumented employees. Some employers actually threaten to deport caregivers and engage in other strong-arm tactics to keep caregivers from vindicating their rights. California law allows undocumented workers to sue for unpaid overtime regardless of their immigration status. There may be other issues that come up related to being undocumented, but these issues can generally be fixed relatively easily and should not cause you to become a victim of wage theft.

What Action to Take Next

If you are a caregiver and you believe that your employer has not paid you fairly under the law, you may have a strong case for compensation. Since the laws in this area are complex, you should contact an experienced attorney who has a documented and demonstrated expertise in representing caregivers. The attorneys at Chaleff Rehwald have the experience you need.

A true caregiver advocate can help you evaluate your situation and advise you about how, when and where to bring a claim. It costs nothing to make an appointment with Chaleff Rehwald and discuss your situation. We are here to help!