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Working with Caregivers: Solutions to Common Problems

On September 20th I will be presenting: Working with Caregivers: Solutions to Common Problems at the PFAC’s Northern California Education Day. For those of who you are not familiar with PFAC, the Professional Fiduciary Association of California is an organization dedicated to servicing professional fiduciaries by providing ongoing educational opportunities, legislative advocacy, and professional resources. PFACE helps professional fiduciaries provide excellent service as well as advocate for and advance the profession throughout California.

There will be a number of other great topics and speakers about a wide variety of subjects from investment and allocation issues, neuropsych exam issues, coordinating special needs trusts and understand SSA, SSDI and SSI. You can view the entire schedule here.

My presentation regarding working with caregivers starts at 2:15 p.m.

I will cover:

  • The past, current and future of caregiver laws
  • Who is the Employer and Why is it Important?
  • The difference between a household worker, a personal attendant and a companion
  • The Right and Wrong Ways to Pay
  • What Happens When a Worker Gets Injured
  • Simple Solutions to the Most Common Problems

I hope you can join me and the rest of the distinguished speakers. The annual event is always enlightening and an opportunity to work with a great group of people.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Properly Paying Caregivers: SNT Symposium

Properly Paying Caregivers for Special Needs Trust Beneficiaries

I am excited to present Properly Paying Caregivers for SNT Beneficiaries at this year’s Special Needs Planning SymposiumSharon Novak of TEAM Risk Management Strategies, LLC and I will cover:

  • Employees versus Independent Contractors
  • Personal Attendants versus Companions
  • Who is an Employer when Hiring Caregivers
  • Minimum Wage and Overtime Obligations
  • Paid Sick Leave Requirements
  • Payroll Taxes, Unemployment Insurance and Workers’ Compensation
  • Conducting Background Checks
  • Common Myths and Misconceptions when Hiring Caregivers

The presentation will be part of a 2-day symposium, with 14 sessions, 10+ speakers and 2 workshops. Set in beautiful Sonoma, California, you can view the full schedule here.

Properly Paying Caregivers Presentation  Set for Saturday, February 18th, at 2:30 p.m.

Kevin Urbatsch did a wonderful job gathering wonderful speakers, including professional fiduciaries, trusts and estates attorneys and other professionals experienced in handling special needs trusts. I look forward to seeing you all there.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Upcoming Presentations About Employment Laws

Upcoming Presentations

I’m very excited about two upcoming presentations that I will present regarding employment laws.

California Society of CPAs

At this upcoming presentation on October 7, 2016, I will discuss: “That’s Not My Employee! Why the California Courts and Government Agencies May Disagree” to the CalCPA at Sunrise Bistro in Walnut Creek.  We will cover:

  • Independent contractor versus employee: It’s not just your client’s problem anymore
  • Minimum wage and overtime requirements: How to pay correctly
  • Update on recent changes in California employment law

Register here.  The presentation is perfect for CPAs with small practices and CPAs that advise small to mid-sized employers.

Aging Life Care Association

At this upcoming presentation on October 21, 2016, I will discuss: “Hiring and Working with Caregivers: Risks, Liabilities and Solutions” at the Aging Life Care Association’s Western Region Chapter Conference in Monterey.  We will cover how to:

  1. Identify the most common employment risks care recipients, families and those in the circle of care face when hiring and employing caregivers.
  2. Identify ways to minimize the risk that a caregiver could claim you are the employer.
  3. Be able to educate your clients regarding the various risks and alternatives when hiring a caregiver.
  4. Have alternative methods for reducing the cost of in-home care without increasing liability.

The WRC-ALCA presentation is primarily geared toward care managers and others assisting the elderly and disabled adults in the home.  Register here.

I hope to see you at these upcoming presentations. A cornerstone of my practice is educating employers, HR professionals, fiduciaries, employees, and others regarding their rights and responsibilities in the workplace. Knowledge is power, so come get powered up!

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

On-Duty Meal Agreement in Care Homes

 

Most employees in California are entitled to a 30-minute uninterrupted meal break when the employee works at least 5 hours in a day. Employers that fail to provide the required meal break may be subject to a penalty equal to one hour at the employee’s regular rate of pay.  When “the nature of the work prevents an employee from being relieved of all duty,” and when the employer and employee enter into a written on-duty meal agreement, the employer may be able to avoid the penalty.  The on-duty meal agreement, however, must “state that the employee may, in writing, revoke the agreement at any time.”

In Palacio v. Jan & Gail’s Care Homes, Inc., an employee brought a class action alleging the employer failed to inform the employees that they had a right to revoke the company’s on-duty meal agreement.  The court not only denied class certification, but also held the care homes do not have to tell employees they can revoke an on-duty meal agreement.

Care Homes do not have to tell employees they can revoke an on-duty meal agreement

But, why?  If the regulations require on-duty meal agreements to contain a provision that the employee may revoke the agreement in writing, how come the court said the employer did not have to have such a provision in the agreement?  Because a different part of the regulations specifically state:

Employees with direct responsibility for children who are under 18 years of age or who are not emancipated from the foster care system and who, in either case, are receiving 24-hour residential care, and employees of 24-hour residential care facilities for the elderly, blind or developmentally disabled individuals may be required to work on-duty meal periods without penalty when necessary to meet regulatory or approved program standards and one of the following two conditions is met:

(1) (a) The residential care employees eats with residents during residents’ meals and the employer provides the same meal at no charge to the employee; or

(b) The employee is in sole charge of the resident(s) and, on the day shift, the employer provides a meal at no charge to the employee.

So, while most employers that can use on-duty meal agreements must inform employees of the right to revoke the on-duty meal agreement at any time, Care Homes do not have to tell employees they can revoke an on-duty meal agreement.  Employers should also be aware that not ever employer can use an on-duty meal agreement.

If you have a question about your on-duty meal agreement, or whether such an agreement is appropriate in your workplace, contact an attorney familiar with on-duty meal agreements.

 

Home Care Companions Are Entitled to Overtime Under the FLSA

A D.C. Court of Appeals confirms that home care companions are entitled to overtime under the FLSA.  The appellate court confirmed that home care agencies and families using caregivers must pay overtime unless the employee meets the narrow “companion” definition.  The new regulations gained a lot of press in late 2014 and early 2015 when the regulations were set to go into effect.  A D.C. Circuit court judge held the provisions invalid, and stayed implementation of the new regulations.  The Department of Labor appealed, and many have been waiting to see what the appellate court will do.

Home care companions are entitled to overtime under the FLSA

The appellate court issued its decision in Home Care Association of America, et al. v. David Weil on August 21, 2015.  The appellate court disagreed with the lower court’s analysis, and found the regulations enforceable.  What does this mean for California employers (at least until the case is appealed to the Supreme Court)?

California and federal rules are different

The federal companion regulations mark one of the first instances where the federal wage and hour laws are more strict than California’s wage and hour laws.  Under California law, caregivers–which California usually calls personal attendants–are only entitled to overtime when they work more than 9 hours in a day or more than 45 hours in a week.  Those same home care companions are entitled to overtime under the FLSA after working 40 hours in a week.  This means many California caregivers will receive overtime after 9 hours in a day or after 40 hours in a week.

The definition of companion is also more limited than California’s personal attendant exemption.  Federal companions cannot spend more than 20% of their time providing care (e.g., assisting with the activities of daily living).  Their primary job is limited to providing fellowship and protection.  California’s personal attendants are allowed to spend 80% of their time providing care, fellowship and protection.

Another major difference between federal and state law is that, under the federal regulations, companions employed by third party care agencies can never be exempt from the FLSA.  California law does not differentiate between private employers and third-party employers.

If you or someone you know has questions about caregiver overtime rules in California, contact the Nuddleman Law Firm, P.C.  Robert Nuddleman assists families, care agencies and caregivers understand the law and ensure employees are paid correctly.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.