New Laws

New Laws Require Overtime for Caregivers, Personal Attendants and Companions

California and federal law requires overtime for caregivers, personal attendants and companions.  Different laws could apply depending on whether the employee is hired by a third-party employer or directly by the home owner.  Robert Nuddleman helps families, care agencies and caregivers understand their respective rights and obligations.

California’s Overtime Requirements for Caregivers

Prior to 2014, persons hired to work in the home to dress, feed and/or supervise a person who cannot care for themselves as a result of age and disability were not entitled to overtime pay.  The Domestic Workers Bill of Rights, which became effective January 1, 2014, eliminated the “personal attendant” exemption from Wage Order 15, which applies to workers employed by the household owner.

Although some employees whose wages are paid by state or county programs (i.e., In-Home Supportive Services, Lanterman Developmental Disabilities Services Act, California Early Intervention Services Act, etc.) are still exempt from California’s overtime laws, most other personal attendants working in the home are entitled to overtime compensation at one and one-half times the employees’ regular rate of pay for all hours worked in excess of 9 hours per day or 45 hours per week.  The overtime obligation applies regardless of whether the worker is employed by the family or a third-party employment agency.  The only exception is if the wages are paid through one of the listed state or county programs or if the person providing the services is the “parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer.”

Federal Overtime Requirements for Companions

Since its inception, the FLSA exempted certain domestic workers (i.e., persons employed about the home).  In 1974, Congress amended the FLSA to include some, but not all, domestic workers.  Companions, sometimes referred to as “elder sitters,” or “personal attendants”, were not covered by the FLSA.  Effective January 1, 2015, new Department of Labor regulations modified the definition of companion and when those workers must be paid overtime.

The revised regulations eliminate the companion exemption for any worker employed by a third-party employer.  This means that if a family uses a third-party agency to provide companion care for a family member, the companion must be paid one and one-half times the employee’s regular rate of pay for any hours worked in excess of 40 hours per week.   Workers employed directly by the family are still exempt from the FLSA’s overtime requirements.

The regulations also narrow the type of work that constitutes “companion” services.  Under the new regulations, the term “companionship services” means “the provision of fellowship and protection for an elderly person or person with an illness, injury, or disability who requires assistance in caring for himself or herself.” Companionship services also includes the provision of “care” if the care is provided “attendant to and in conjunction with the provision of fellowship and protection and if it does not exceed 20 percent of the total hours worked per person and per workweek.”

The FLSA provides the minimum protection, and employers are still required to comply with state laws that either mirror the FLSA or provide greater protections for workers.  The revised FLSA regulations are somewhat historic in that it is one of the only occasions where federal law provides greater protection for the workers than California law.  Because employers are required to comply with state and federal law, many families must now pay overtime when the employee works more than 9 hours in a day (state) or more than 40 hours in a week (federal).

Shortly before the federal regulations were to go into effect, a D.C. circuit court judge declared the regulations void. On August 21, 2015, an appellate court overturned the decision, declaring the regulations valid. The Ninth Circuit and the U.S. Supreme Court have not yet ruled on the issue, therefore it is unclear whether California workers are entitled to the protections provided by the new federal regulations.

The recent changes in California and federal law require many employers and employees employed about the home to renegotiate the terms of employment.  Knowing the lawful ways to employ household workers and understanding employee rights to overtime will enable both parties to negotiate fair and reasonable terms of employment.

Whether the employee is hired directly by the family, through a care agency or a referral agency, and where the services are performed alter the rights and responsibilities of the employee and the employer.  Robert Nuddleman has been representing and advising employers and employees regarding wage and hour obligations for over two decades.  He frequently presents seminars and training regarding domestic worker rights and obligations. If you have questions about your rights or responsibilities, contact Robert Nuddleman.