I was brought into my first caregiver case at the very beginning of my practice. A loving middle-aged daughter came to our office with a labor board complaint in her hand that had been filed against her 80 year old father’s estate. Her very elderly parents had been in need of caregivers for several years. They did not want to move out of their house in which they raised their five children, but they were no longer able to care for themselves. It started with one caregiver they found through a friend’s housekeeper. Then, through the years, as they needed additional hours of help, the caregiver presented a sister, an uncle, a niece, that were all ready to jump into action.
Each caregiver had shifts, scheduled out by the caregivers themselves. The daughter, my client, was savvier than most, and had full spreadsheets of their hours and who was on what shift. She also created a regular rate of pay of $20 per hour and a premium pay of $25 per hour for a shift exceeding 8 hours.
Even with all of these efforts, the wage and hour rules were not followed, and there was no question that they were subject to multiple violations. We went to the Labor Board and tried to mitigate a $120,000 demand.
The Labor Board often reduces penalties when good faith is shown. It is not hard to show good faith with a client who is north of 80 years old, in a wheelchair, and shaking from Parkinson’s. No one could ever look at him and put him in the category of a malicious corporate business owner trying to cheat the system. He was being generous by paying well above minimum wage and employing an entire family who received checks without any taxes being withheld. However, ignorance of California’s exacting wage regulations is not a complete defense, no matter who you are.
Several caregiving cases came into our office after that, and none had the savvy daughter with her timesheets and premium pay. One client was an elderly couple with an even more elderly mother that was going into an assisted living situation and no longer needed the caregiver’s services They were so afraid of the liability from having not followed the proper rules, they left the caregiver their mother’s car and Tiffany watch, much to my dismay and advice against doing so. We included those items into a severance agreement, and she was paid off in an extraordinary way, all because they were trying to ensure their unknowing mistakes would not come back to the haunt them in a big way. These severance agreements are often used as a deterrent to sue but are not ironclad against wage and hour cases.
What is so emotionally disturbing about these cases is the harsh reality that an elderly person in the last chapters of their life, is viewed and treated in the law as if they are a sophisticated highly resourced CEO in a boardroom. Those two images juxtaposed in my mind is what haunts me and gives me the fire to not only represent these elderly employers, but also to educate anyone who hires a caregiver to understand what their legal obligations are to properly form the employment relationship and to pay the caregivers appropriately.
So often, I get calls from aggrieved family members- they had just lost their loved ones- and now the caregivers are coming after the estate with these wage and hour claims. I cannot adequately describe the pain that a family member feels, having just lost their beloved mom or dad, aunt or uncle, and then being stabbed in the back by the caregiver that you thought of as family. It is a terrible feeling.
There are many reasons why this happens. There are attorneys and legal representatives in certain communities that go into churches of certain demographics where there lives a big population of caregivers and they will speak about their rights and entitlements. They are aggressively spreading the message that the elderly they are providing care for are wealthy with resources and the caregivers need to recover what is rightfully owed to them. Often after the employer passes away, the loyalty the caregiver had before does not extend to the family. I have been in my conference room during informal mediations where caregivers yell at the family members that they never even visited their loved ones and so they have no right to their money. It is an ugly scene all around.
Wage and hour rules under the Labor Code are formulaic. These laws have no exemptions for unsophisticated elderly or disabled people.
The California Domestic Worker Bill of Rights (AB 241) sets forth specific rules for caregivers- and in particular, personal attendants. A personal attendant is defined as a domestic worker who spends at least 80 percent of his or her time performing work such as supervising, feeding and dressing a person who needs assistance due to advanced age, physical disability or mental deficiency. Under AB 241, overtime is calculated at 1.5x the regular rate of pay for any hours worked over 9 hours per day or over 45 hours per week. Notably, there are federal rules and California rules that are inconsistent with regard to overtime, and federal law in this situation trumps, but this is not known to a layman. Personal attendants are excluded from meal and rest breaks. If the caregiver lives there, assuming it is a requirement of the job, there is no exclusion for sleeping hours. You can, however, deduct lodging and meal credits from their wages in a set amount as provided by the Department of Industrial Relations. The amount increases a small amount every year.
Until there is some legislation that is brought forth to protect our elderly population, the best thing to do if you are hiring a caregiver for you or your family member, is to understand your legal obligations. I strongly advise having a written caregiver agreement created before the start of the relationship. California requires specific documents to be provided to employees you hire and reporting to the Employment Development Department. I recommend using a payroll system, understand the wage and hour rules, keep track of caregiver time formally, and provide and track sick time. Do not classify anyone as an independent contractor or pay in cash with no record.
WHAT CAN YOU DO?
While it can be overwhelming, once you have your documentation and systems in place, it is manageable. Please do not hesitate to call an employment lawyer to set this all up for you. And if you are reading this and stressing about the arrangement you currently have in place that is likely out of compliance, the best time to fix it is when the caregiver is still employed and on good terms. Just be proactive! Do not wait for that dreadful letter from the Labor Board to come in the mail or a civil complaint to be served on your loved one.
An elderly person at the end of their life should be able to leave their money in a way that preserves their legacy, leaving it to their families’ heirs or to a meaningful philanthropic cause, not to pay for unnecessary legal fees and penalties.
We would be happy to help protect your family members’ legacies from unintended mistakes. For more information, please do not hesitate to call us at 818-591-6724.
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