hiring caregivers

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.

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