Gyongyi, a caregiver in Los Angeles, wants to know how much overtime she is entitled during a 24-hour shift. “I have a live-in job and have to sleep there. But I have less than eight hours of sleep without interruption because I have to turn my patient every two hours, night and day,” she says. “I’m exhausted and my employer says I don’t get overtime because I work in a private home, and he says I don’t get paid for meal breaks. Thank you in advance for your advice.”
With the increase in California’s minimum wage to $10 an hour on January 1, 2016, that means a 24-hour caregiver must be paid $315 a day to comply with the current law. But there are many exceptions and the California labor law is not always black and white. Neither meal breaks are required nor does this labor code apply if you are a close family member (such as the child) caring for the patient. But there are exceptions to this rule.
“If an agency is your employer and you are providing 24 hour care then yes, you are entitled to overtime protection,” says Daniel Chaleff, Employment Law Attorney of Chaleff Rehwald. “Under California law caregivers (and other workers) must be paid for all hours worked. If you work as a live-in senior caregiver, are required to turn your patient every 2 hours and are not allowed to leave the person cared for alone at any time, you are working 24 hours a day.”
Under Labor Code 1454, you must receive overtime when working more than nine hours a day or 45 hours a week. “At a minimum, you would be entitled to $315 a day, calculated as follows: 9 hours of pay at minimum wage of $10/hr, 15 hours of pay at the overtime rate of $15/hr,” explains Chaleff. “I believe that many caregivers who are employed privately or directly by the person they are caring for are paid less, such as $150 for 24-hour care. If you are required to sleep on the premises and available to give care you are working 24 hours. Many caregivers don’t sleep through the night because they have to help with the bathroom, get drinks of water, or reposition a patient to avoid pressure sores.”
Typically, caregivers are paid a day rate or monthly salary, neither of which compensates for overtime hours worked. Instead, it results in a substantial overtime claim for the caregiver. But how can a caregiver making about $150 per day afford to hire an attorney and file a California overtime lawsuit?
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In Gyongyi’s case, she can file a claim but likely won’t get paid that $315 daily rate. As a caregiver you have the right to file a claim, but that doesn’t mean you will prevail in court. So most importantly, search for an attorney such as Chaleff who works for a contingency fee.