Bay Area Home Care Provider pays $340,000 for Client Harassment

EEOC Obtains $340,000 for Caregivers Harassed Daily by 80-Year-Old Client

 According to the Equal Employment Opportunity Commission, R. MacArthur Corp. agreed to pay $340,000 in damages to five former employees resulting from a client’s inappropriate sexual conduct. R. MacArthur Corp.’s successor, San Oak Caring Hands LLC, agreed to implement measures to prevent future harassment.

According to the EEOC’s suit, “caregivers employed by RMC, a franchisee of Home Instead Senior Care, reported that an 80-year-old client in Alameda, Calif., repeatedly groped them, offered lewd com­ments about their breasts and buttocks, and made additional racially and sexually offensive comments while they were providing in-home assistance.” The EEOC claimed that the employer failed to act on employee complaints and even retaliated against one complaining caregiver by refusing to place her in other available assignments.

The employee who brought the charge to the EEOC said, “I’m hoping this settlement will encourage other in-home caregivers to realize that while we take care of people, we also deserve to be treated with respect and dignity, and the laws protect us from harassment even when our workplace is inside someone else’s home.”

Under a five-year consent decree settling the suit, RMC will pay $340,000 to five caregivers. San Oak Caring Hands, the entity that now owns and operates RMC’s Home Instead franchises, will institute thorough anti-harassment training and policies that emphasize prevention, prompt correction and compe­tent investigation. San Oak will engage a consultant to review discrimination matters and provide perio­dic reporting of its training, policies and complaint investigation to the EEOC.

EEOC Senior Trial Attorney Linda Ordonio-Dixon said, “It’s important that we send a clear message that harassment is not part of a caregiver’s job description and that employers must do what they can to prevent and correct any abuses, even if the workplace happens to be in a client’s home. In-home care­givers can be particularly vulnerable to harassment, and one of the EEOC’s top priorities is to defend vulnerable workers against discrimination.”

EEOC San Francisco District Director William Tamayo noted, “According to the U.S. Bureau of Labor Statistics, home health aides have been projected to be the fourth-fastest growing occupation in the nation. In fact, California has just passed legislation, AB 3082, ensuring that the state Department of Social Services develop anti-harassment training and a method to track cases of sexual harassment of in-home care providers.”

One of the difficulties in caring for persons with diminished capacity is the lack of impulse control. Some care recipients lack the ability to control their sexual comments and conduct. Placing employees in such an environment creates a risk for the employer, but the person still requires care. The company may have to choose between providing services to a client that requires services and protecting its employees from unlawful harassment. Having handled several similar cases, I know this is a very difficult decision.

There are steps employers can take to protect employees even if the client’s medical condition creates a potentially hostile work environment. Open communication channels are necessary, and the company has to ensure the employees know that their protection is important. If an employer cannot establish sufficient measures to protect the employees, the company may not be able to provide the services the client needs.

Original Article by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Upcoming Presentation: Employment Laws that Impact Your Practice and Your Clients

I’m excited to present Employment Laws that Impact Your Practice and Your Clients at the East Bay chapter of the Professional Fiduciary Association of California on May 10th. The presentation will be at the San Leandro Library from noon to 1:15.

May 10th Presentation Regarding Employment Laws for Fiduciaries

We’ll talk about:

I always enjoy presenting to PFAC members. They are a wonderful group of professionals dedicated to helping others. I look forward to helping them build their practices and identify ways to help their clients. [Full disclosure, in addition to being a frequent presenter, I’m also an affiliate member of PFAC.]

I won’t be able to attend their annual conference in Southern California this year, but I hope to do a presentation at their Education Day in September.

You can register for the May 10th presentation here. The member price is only $10, and the non-member price is $20. I hope to see you 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.

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.

Horror Stories from Hiring Caregivers – Part 2

Horror Stories from Hiring Caregivers – Part 2

This is Part 2 in my series on cautionary tales taken from real caregiver cases I handled. As before, I left out the names to protect the parties, but the facts are real. Read on to learn how innocent mistakes when hiring caregivers can lead to dire consequences. Some have happy endings, others not. All have lessons for families hiring caregivers. You can read the first installment here.

Today’s story:

A Tale of Two Sisters

A year and a half after Mom died, the caregiver that was providing 24/7 care sued the two daughters for unpaid wages. The complaint alleged the two sisters were employers because, as trustees of Mom’s trust, they were responsible for supervising the caregiver and paying the caregiver. The caregiver claimed she was owed over $450,000 in unpaid wages and penalties.

The opposing counsel used the wage order and the FLSA to bolster her argument that the co-trustees “directly or indirectly” controlled the hours, wages or working conditions. Shortly after we resolved the case, the California Supreme Court adopted the same definition of employer.

A potential saving point in our case was the fact that the caregiver waited more than a year to file her claim. While most unpaid wage claims have a three-year statute of limitations (four-years if it constitutes and unfair business practice), we argued the shorter one-year statute of limitations for claims against a decedent applied. We resolved the case before the court heard our demurrer on the issue.

It took some time to convince the other side that the caregiver was a “personal attendant,” and therefore not entitled to overtime. Remember, this was before the Domestic Workers Bill of Rights was adopted in 2014. As a personal attendant, she also could not recover meal and rest break penalties. We resolved the case through private mediation. In exchange for a complete release of claims, my client paid $27,000 in back wages, $10,500 in penalties and $17,500 to the plaintiff’s attorney for costs and fees. This is in addition to over $30,000 my client paid my firm.

Although we were confident in our arguments, the client still had potential liability. If we lost the statute of limitations argument, the caregiver had a valid minimum wage claim. She received a salary that did not cover 24-hour care. Although Mom did not necessarily require 24-hour care, there were no time records to confirm the actual hours worked. Even if we defeated the claims, the client likely would have spent close to the settlement amount defending the case.

What lessons did we learn regarding caregivers?

1.     Make sure the employment agreement is in writing.

2.     Be sure to designate the capacity in which you are acting (e.g., conservator, trustee, etc.) in the employment agreement.

3.     Maintain a record of the hours worked.

4.     Do not hire a single caregiver to provide 24/7 care (we learned this one before, but it’s one that repeatedly comes up).

More stories will follow.

If you, or someone you know, has questions about employing or hiring caregivers, feel free to contact the Nuddleman Law Firm. I represent caregivers, families, fiduciaries, attorneys, care agencies, home health agencies, residential care facilities and others involved in the circle of care.

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.

Hiring Caregivers Horror Stories – Part 1

Horror Stories from Hiring Caregivers – Part 1

I help a lot of families, trustees, conservators and other fiduciaries resolve disputes with caregivers. I also represent a number of caregivers in disputes with the families that hired them. I frequently educate those in the circle of care regarding the common pitfalls when hiring caregivers. I encourage families to use reputable care agencies or 3rd party employers because most families are not prepared to become employers.

The following real case is a cautionary tale to show how innocent mistakes can lead to dire consequences. I left out the names to protect the parties, but the facts are real.

Sleeping with the Enemy

My first venture into what can happen when hiring caregivers was in 2007. A colleague represented a trustee who, along with the conservator, wanted to terminate the caregiver. Not only had the caregiver moved her entire family into the home, the caregiver was sleeping with the successor trustee who was trying to undermine the current trustee. The caregiver and her family damaged the home, and were treating the employer’s credit card as their personal bank. In order to ease the transition, they offered the caregiver a fairly generous severance, which the caregiver rejected. We suspect the successor trustee helped her in that decision.

The trustee had to initiate an unlawful detainer action to remove the caregiver and her family. When she finally left, the trustee discovered burned cabinets, rat feces in the kitchen, missing furniture, and soiled clothing strewn about the home.

The caregiver hired an attorney, who demanded $350,000 in unpaid wages. The attorney claimed the caregiver worked 24-hours a day, 7 days a week. Because the caregiver only received $750 per week, the wages did not cover all hours worked, even at minimum wage. At that time, caregivers were not entitled to overtime. We spent significant time, money and resources convincing the opposing counsel that the caregiver was not owed the wages she claimed. Unfortunately, when you added the various penalties, the claim was worth more than $350,000 . Fortunately, the opposing counsel didn’t figured that out before we settled the case.

We agreed to early mediation and with the help of a very good mediator, resolved the case without litigation. My client paid the caregiver $94,500 in back wages, and paid her attorney $63,000 in attorneys’ fees and costs.

It is important to note that this case took place over 10 years ago, when caregivers were not entitled to overtime. Had this case occurred today, the liability would have been significantly greater.

What lessons did we learn regarding hiring caregivers?

  1. It’s never a good idea to let the caregiver’s family move into the residence.
  2. Hiring a single caregiver to provide care to an elderly or disabled person increases the chance of elder or dependent-adult abuse.
  3. Hiring a single caregiver to provide 24/7 care is costly.
  4. Allowing an employee to sleep with a family member can get expensive.

More stories will follow.

If you, or someone you know, has questions about employing or hiring caregivers, feel free to contact the Nuddleman Law Firm. I represent caregivers, families, fiduciaries, attorneys, care agencies, home health agencies, residential care facilities and others involved in the circle of care.

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.