Caregivers across California are suffering from unpaid wages, underpaid wages, wage theft and overtime violations. Many employing elderly care services are operating in violation of California labor laws by failing to properly pay their employees. If you’re a caregiver or a fiduciary responsible for making sure caregivers are paid properly, what should you do? Here’s a guide.
Elder care refers to the nurses, caregivers and assistants who help seniors and others who need assistance with basic daily care needs, including bill pay, feeding, clothing, washing, home maintenance, etc.
Wage theft refers to the act of underpaying or failing to pay employees for time worked, as outlined by federal and state Labor Laws. As an example, elder caregivers have been commonly asked to care for patients for up to 24 hours at a time. And they are doing so while being paid a standard hourly or daily rates. In some cases, their resulting hourly wage works out to less than $3/hour, in violation of federal and state labor laws. What’s more, when caregivers are working long shifts, they often don’t receive their statutory breaks or statutory mealtime allotments, a separate violation of wage and hour laws. Finally, because caregivers are often hired directly by family members who are unfamiliar with these laws, they also fail to document the caregiver hours, breaks and mealtimes, which along can constitute a violation.
Federal and State laws dictate a higher pay scale for the overtime hours worked, typically 1.5 times their standard hourly rate. When the hours become extreme, a caregiver’s lost wages can add up to tens of thousands of dollars, or more, in unpaid wages and penalties.
The laws are written to protect employees from being underpaid and from being forced to forego breaks and mealtimes. The law also provides harsh penalties against employers who fail to pay full wages, as well as attorney’s fees and costs. This makes it easier for a caregiver to pursue a wage theft claim because the attorney likely will be compensated by the employer, rather than the caregiver.
As outlined in California State Law, Assembly Bill 51 is designed to protect employees by making it illegal for an employer to request that a job applicant sign away their right to legal arbitration in the event of wage theft:
“This bill would prohibit a person from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment as a condition of employment, continued employment, or the receipt of any employment-related benefit.”
While Federal Law continues to support employers, now California State Law deters the practice. Because there is a legal conflict between Federal and State laws, it continues to be a legal debate, and cause issues.
“432.6. (a) A person shall not, as a condition of employment, continued employment, or the receipt of any employment-related benefit, require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code) or this code, including the right to file and pursue a civil action or a complaint with, or otherwise notify, any state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity of any alleged violation.”
The new laws invalidate any agreement by a caregiver that gives up any right they would have under California’s labor laws, including the right to a jury trial on these issues. While these laws do not appear to apply retroactively to existing agreements, you can expect lawyers to seek their application to those agreements.
Labor laws are enforced by the U.S. Department of Labor/Wage and Hour Division and the California State Labor Commissioner’s Office. However, the vast majority of claims are addressed civilly in the civil courts with the help of labor and employment counsel familiar with elder care issues.
Contact a labor and employment law attorney familiar with elder care issues as soon as possible. Many offer a free consultation, during which the strengths and weaknesses, potential outcome, and timeline for your case can be discussed.
You have up to 24 months to file a new claim, and up to 4 years to file a claim associated with an existing lawsuit. To report a labor law violation with the State of California Labor Commissioner, click here.
The easiest way to avoid committing wage theft is to document caregiver hours, ensure rest and meal breaks are taken, and caregivers are paid everything they are owned, and on time. The next easiest way to avoid committing wage theft is to delegate the task to a third-party vendor, whom you hire and who is responsible for these tasks. Still, you want to make sure the vendor is property paying its workers, or you likely will get dragged into litigation by a caregiver who has been underpaid or unpaid. This is a sticky area of the law with harsh penalties for non-compliance. Consult a labor and employment lawyer with elder care experience to ensure you are crossing every “t” and dotting every “i.”
Contact an attorney before hiring a caregiver, to make sure you have proper protocols in place to ensure you are not violating wage and hour laws. If you have a concern, contact counsel immediately the moment you suspect a caregiver wage theft and overtime violation has occurred so you understand your rights and obligations.
Generally, there is no cost to the victim, out of pocket, as the attorney fees and costs should be paid by the settlement or judgment from the court. At RMO, we help people like you address issues like these every day.
RMO LLP serves clients in Los Angeles, Santa Monica, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri and Kansas. Our founder, Scott E. Rahn has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com