I hired a live-in caregiver for my mom who has advanced dementia. We hired her as a W2 employee but I don't know if she would be a personal attendant. If she is a personal attendant would I need to pay her overtime? Does it matter that she is a live-in caregiver?
Depending on the employee but if they're not exempt then they the wage laws regarding overtime apply.
This is just my opinion and not a comprehensive answer. You assume the risk because this answer may not apply to your situation depending on the facts.
Whether the person you hired is exempt from overtime compensation under California overtime law depends on the type of work performed by such caregiver. In essence, If the employee performs work of a "personal attendant," defined to mean "a person employed . . . to supervise, feed, or dress" the client, the caretaker is exempt from overtime pay requirements. (Industrial Welfare Commission (IWC) Wage Order No. 15-2001, §§ 1(B), 2(J), codified at Cal. Code Regs., tit. 8, § 11150.) However, if the caretaker performs a "significant amount of work" in addition to these tasks, the caretaker is not exempt from overtime pay requirements. (§ 11150, subd. 2(J).) Additionally with certain exceptions, if the caretaker is a registered nurse employed to engage in the practice of nursing in the home, the nurse is not exempt from overtime pay requirements. (§ 11150, subd. 1(A)(3)(f), (g).)
Here is an in-depth answer. First, you need to know that in addition to Labor Code section 510, the overtime protections for individuals who work in "household occupations” are governed by Wage Order No. 15. "'Household Occupations' " is defined to mean "all services related to the care of persons or maintenance of a private household or its premises by an employee of a private householder. Such occupations shall include, but not be limited to, . . . butlers, chauffeurs, companions, cooks, day workers, gardeners, graduate nurses, grooms, house cleaners, housekeepers, maids, practical nurses, tutors, valets and other similar occupations." (§ 11150, subd. 2(I).)
Wage Order No. 15 specifically provides that "personal attendants" are exempt from statutory overtime requirements. (§ 11150, subd. 1(B).) The wage order defines a " 'Personal attendant' " to "include[ ] baby sitters and means any person employed by a private householder or by any third party employer . . . to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of 'personal attendant' shall apply when no significant amount of work other than the foregoing is required." (§ 11150, subd. 2(J).)
As interpreted by the DLSE, the word "supervision" with respect to an elderly client generally refers to assisting the person with daily tasks to allow the individual to remain living at home.
The types of activities that fall within the "supervision" category, to include assistance with bathing, showering, accessing medicines, money management, and housework limited to the direct personal space of the supervised person.
Most importantly, in a recent decision Cash v. Winn, the Court of Appeals held that a personal attendant as defined above, does not lose his or her status as a personal attendant as well as overtime exemption just because the employee regularly performs any minor health care related services, such as taking a "temperature or pulse" or assisting with over-the counter blood sugar tests. However, the court noted that such health care duties should not exceed 20% of all duties.
As you can see, to answer your questions, you really need to determine what services your caregiver is going to provide for your mom. As to her “live-in” status, most likely, it has no legal impact on the issue as long as the caregiver falls within a personal attendant exemption. I hope this answer your question and good luck.
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