PROBATE ESTATE & TRUST

Caregiver Wage Theft & Overtime Violations

California’s strict employment laws pose threats to unsuspecting elders; at the same time, caregivers are being deprived of their rights.

Caregiver wage theft and overtime violations

Caregiver Rights in California

Caregivers make it much easier to care for an elderly loved one. There are many employment laws to understand, some of which will change in 2020 – such as a new ban on arbitration clauses in contracts. Here’s what you need to know.

An Overview of Caregiver Compensation and Working Conditions

California employment law is the strictest in the country. It imposes requirements for when and how an employee is compensated, may take a break, or can utilize sick time. California also imposes serious penalties for employers who violate these laws—including penalties payable to the State as well as employees. A mistake can cost an employer thousands of dollars.

Within that complex web of laws, elder caregivers are subject to some exceptions because of the nature of their work. 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. But those expectations do not leave the minefield of labor law any less treacherous for the unsuspecting employer—or the unsuspecting customer of a caregiving company.

Live-in caregivers are entitled to 12 consecutive off-duty hours each day except in certain emergency situations. They also get three hours of non-consecutive off-duty break time during a 12-hour shift. The law also requires they receive 24 hours off duty after every five days of work, except in certain emergencies.
Non-live-in caregivers are entitled to meal and rest breaks. Their unpaid 30-minute, off-duty meal break for shifts over five hours must begin before the end of the fifth hour of work. If the shift exceeds 10 hours, the caregiver gets a second 30-minute, off-duty break.
California mandates that an employee’s pay stub must include an employee ID number or the last four digits of the employee’s SSN, the exact number of hours worked, all rates of pay, the pay period, and the payer’s address.

Who is an employer? Why does it matter?

In California, “employer” has three definitions. An employer is anyone who:

  1. “Suffers or permits” another to perform work—which means anyone who knowingly allows another person to perform work on their behalf;
  2. Exercises control over the working conditions of the worker; or
  3. Contracts with the worker to create an employment relationship.

If a court determines that a person or entity meets any one of those three definitions, the person or entity is required to comply with the strict laws that California imposes.

For elder caregivers, the second definition causes the most problems. Caregivers provide services that require significant instruction from, and tailoring to, the individual for whom they are caring—such as bill pay, feeding, clothing, washing, and home maintenance. Arguably then, definition (2) makes the elder an “employer” under California law.

That is true even though it is counterintuitive, especially considering that many caregivers work for companies that the elders contact to obtain services. To the unsuspecting elder or their family, contacting a caregiving company is no different than calling a company who sends out a plumber. To the family, they would not be an employer of the plumber—and they would be right. But because of the intimate nature of the time and tasks caregivers provide, a court might find the family or elder to be an employer.

Because of this, caregivers have begun filing lawsuits against individual elders and their families, in addition to the caregiver’s employer. Each case will be different—some families may prevail where others face significant financial liability for unpaid wages or other labor law violations.

New Laws Make It Harder to Contain the Cost of Legal Disputes

For many years, employers have utilized arbitration clauses and other limiting language—like limits on “class” or “representative” actions—to contain the cost of legal disputes that arise from labor law violations. Arbitration clauses require that any dispute be heard by a privately-paid decision maker—rather than through court. The clauses also make a decision of the arbitrator binding and subject to very limited review by the courts. Arbitration is often seen as faster, more efficient, and cheaper overall for employers—especially because the arbitrators’ decision can be appealed only on limited grounds.
But Assembly Bill 51 mandates that any employment contract commenced after Jan. 1, 2020 may not include an arbitration clause as a condition of employment. New employment disputes will proceed through the courts, usually at a higher cost to the defendants.

Families: Protect Yourselves

When contacting a caregiving company to arrange elder care, families should read the contracts carefully. Ensure that the company agrees that they are the employer of the caregiver. Also have the company confirm that it has workers’ compensation insurance, provides detailed paystubs to the caregiver, and gives the caregiver a notice regarding their working conditions and rights to breaks and rest periods. Families should also ensure that the caregivers are receiving the breaks to which they are entitled.

Families who are sued by caregivers should immediately contact an attorney with specialization in this area such as RMO, which addresses such issues every day.

Caregivers: Assert Your Rights

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 in the civil courts with the help of labor and employment counsel familiar with elder care issues.
If you’re a caregiver who has been hired directly by a family, or if you work for a company that isn’t complying with the law, you should quickly contact an attorney to ensure your rights are protected. There are time limitations on when you can file an action, and if you don’t meet them, you won’t be compensated for your work.

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. Call RMO today for a consultation.

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Roshanne Katouzian is an associate in the Los Angeles office of RMO LLP. Roshanne focuses her practice on two areas of litigation: (1) representing beneficiaries, professional and corporate fiduciaries (administrators, executors, trustees, conservators, and guardians) in contested trust, estate and probate litigation; and (2) representing businesses, business owners, directors, executives, members, officers, partners and shareholders in business litigation and commercial disputes, and in internal and external investigations.

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