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Domestic Workers and Personal Attendants Still Targets of California Overtime Violations

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Sacramento, CAAlthough California’s Domestic Worker Bill of Rights (California AB 241) came into effect almost 10 months ago to protect in-home workers from California overtime violations, there are still reports of home aides overtime violations. Paying “day rates” is illegal under the bill because it doesn’t allow for overtime compensation.

Employers who pay workers by the day are either unaware that in home care overtime violations apply to personal assistants, or they are knowingly breaking the law. The “unaware” excuse is a stretch, given that AB 241 has been in effect since January 2014. Chances are, employers who violate domestic worker overtime laws wouldn’t think twice about charging for overtime at their place of business. And they often “forget” that their home aides have families of their own.

Personal assistants, or personal attendants, are classified as domestic workers because they work in someone’s home. The Domestic Workers Bill of Rights law requires that personal attendants who work in private households must be paid a minimum of $9 an hour for the first 9 hours of work, and time-and-a-half - $13.50 - for more than 9 hours worked in a day. (The only exception to this law applies to certain relatives.) These popular day rates are typically $80 to $120 per day. If a personal attendant is required to work 24 hours in a day (such as a live-in attendant), the current minimum wage with overtime must be calculated at $283.50 per day. Clearly, this amount is well above the average day rate.

If an employer fails to pay overtime, a domestic worker - including caregivers, housekeepers, maids, childcare providers and personal assistants - can file a home aides overtime lawsuit against their employer. A domestic worker who files a California overtime lawsuit can potentially recover unpaid wages and overtime. As well, compensation can include reasonable attorney’s fees, associated litigation costs, interest and penalties.

According to lawyer Rex Parris, there has been a tendency for domestic workers to become easily marginalized in the absence of legislation protecting them. Many of them live in their employer’s home and as such, they are often isolated and more exposed to the demands of their employer, regardless of pay or the number of hours worked. The AB 241 protects them not only from overtime violations, but it empowers them to fight for their rights, including missed meal breaks and rest periods.

The Domestic Worker Bill of Rights law contains a “sunset” provision, which means it is only in effect until January 1, 2017. After that date, the law will be repealed unless another statute is enacted. To determine whether another statute is enacted, Governor Jerry Brown will convene a committee - including personal attendants and their employers - to report on the effects of the law. Until that time, California employment attorneys may see an increase in home care overtime lawsuits.

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READER COMMENTS

Posted by

on
I have been working as caregiver for more than 5 years in a home care facility in Napa County. I started getting paid $65 a day til they increase me to $80 a day, live-in, but I cant recall when. Three months ago, I was transferred to another home care facility that my original boss daughter's recently acquired. In the beginning there was only 2 clients or occupants in the home care facility in the home and only one person or caregiver was assigned to work all throughout the 24 hour shift and given 5 consecutive days a week. Another care giver came on board but left after a month of working there. Apparently, she was promised $11 an hour but to her dismayed upon checking her direct deposit learned she only got paid $80 instead of the promised $11 which she expected daily pay of $264. I wanted to file a claim against this employer as I left and quit the work last Sunday because of schedule issues.

Posted by

on
You are being shorted about $5.50/da. or $22/wk. Employers may deduct 8 hours for sleep in 24 hour assignments if the care giver receives 5 hrs of uninterrupted rest (CFR 29 785.22).

Here's the math, to the 24 hr workday, less 8 hrs, leaves 16 hrs, made of 9 reg hours (AB 421) and 7 O/T hrs. This is the equivalent of 19.5 hrs (9+7+3.5). At $9/hr = $175.50. Room and board cannot be added to your earnings if have an permanent residence elsewhere.

Beginning this January you are to accrue 3.33% of the reg hours towards sick leave (AB 1522), and O/T starts after 40 hrs/wk not 45 through the Feds, which adds $22.50 to your weekly pay. The FLSA said they won't enforce it, but you can with a private attorney - see below.

And there's more. It sounds like the family is paying a daily rate without an hourly computation or paying payroll taxes. That is a requirement. You do not qualify as a contractor for many reasons, one being the family sets your hours of work, not you. Therefore they should be paying half of your SS and FICA, plus Unempl/ insurance. withholding for SDI, providing workers' comp ins, and reporting your wages EDD and the IRS. With unemployment insurance you would have income if the client goes to a facility or passes away. Workers' comp and State Disability Insurance would provide income if injured on or off the job.

There should be a written statement which you are given a copy of, showing your hourly wage and pay dates. On your paycheck stub should an explanation of your earnings showing the total hours worked, hourly wage, and deductions. Not doing any of this is a $100/pay pd fine. Not having workers' comp insurance is $1,000/mo fine.

You can report these violations to the CA Dept Industrial Welfare, Labor Standard Enforcement Division, or make extra money for yourself by using an attorney through the PAGA. see LC 2698. A portion of the fines paid to your employer would be shared with you.

Finally, I would suggest you consider working for an agency (Home Instead, Visiting Angles, Assisted Living, etc.) All provide mandatory benefits and overtime, and plus most pay more the minimum wage, provide health insurance, paid time off, and are flexible with scheduling.

Posted by

on
I HAVE WORKED AS A CAREGIVER FOR SIX YRS.I WORK MON 9 am to Fri 9 am I get pay $170.00a day and work 96 hrs a week 24hr day I ask how I got played a they told I fall under a causal nanny so am I required to get overtime or I donut don't even make minimum wage and I'm there all week if they charge me forever food room rent I still would make more then $170:00 a day I jjust don't think I a being paid fairly I get no vacation and no sick time I miss work I don't get paid if that person I care for get sick I don't get paid so please let me know if I'm being paid fairly

Posted by

on
I HAVE WORKED AS A CAREGIVER FOR SIX YRS.I WORK MON 9 am to Fri 9 am I get pay $170.00a day and work 96 hrs a week 24hr day I ask how I got played a they told I fall under a causal nanny so am I required to get overtime or I donut don't even make minimum wage and I'm there all week if they charge me forever food room rent I still would make more then $170:00 a day I jjust don't think I a being paid fairly I get no vacation and no sick time I miss work I don't get paid if that person I care for get sick I don't get paid so please let me know if I'm being paid fairly

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