Caregiver Versus Personal accompanying – Wages and Benefits

Caregiver Versus Personal accompanying – Wages and Benefits

Are you a caregiver or a personal accompanying who works in a private household or home? As a household worker either as a caregiver or personal accompanying, are you entitled to minimum wage? Over-time pay? Other benefits?

If hired directly by an individual or family, your benefits are different from one who is hired by a private firm or agency and governed by general employment laws: applicable federal and state statutes.

A live-in employee as opposed to a live-out employee is unprotected to special work rules discussed below.

A caregiver or “care custodian” is defined by Section 15610.17 of the California Welfare and Institutions Code as:

“… an administrator or an employee of…public or private facilities or agencies, or persons providing care or sets for elders or dependent adults, including members of the sustain staff and maintenance staff.”

A “personal accompanying” is not entitled to overtime compensation, unless: (1.) he or she is a live-in employee; or (2.) he or she does general household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or (3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.

In these three instances, the household worker is no longer considered a “personal accompanying” and is entitled to overtime pay. Otherwise, light house keeping and cooking chores qualify as work exempt from overtime compensation.

Personal accompanying As Defined In CA IWC Wage Order 15:

Section 2(J) of the California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 defines “personal accompanying” as follows:

“‘Personal accompanying’ includes baby sitters and method any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, satisfy or dress a child or person who by reason of progressive age, physical disability, or mental deficiency needs supervision. The position of ‘personal accompanying’ shall apply when no meaningful amount of work other than the foregoing is required.”

Indeed, the California Division of Labor Standards Enforcement (DLSE) has historically adopted the standard used in the federal regulations, 29 C.F.R. 552.6 on “companionship sets,” to wit:

“…(T)he term ‘companionship sets’ shall average those sets which provide fellowship, care, and protection for a person who, because of progressive age or physical or mental infirmity, cannot care for his or her own needs. Such sets may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar sets. They may also include the performance of general household work: Provided, however, that such work is minor point, i.e., does not go beyond 20 percent of the total weekly hours worked.”

Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:

“The term ‘companionship sets’ does not include sets related to the care and protection of the aged or infirm that require and are performed by trained personnel, such as registered or functional nurse.”

consequently, the permissible duties of a “personal accompanying” include activities of daily living such as getting in or out of bed, showering, bathing, using a toilet. A “personal accompanying’s” duties of “supervising” would include assistance in obtaining medical care, preparing meals, shopping for personal items or groceries, using a telephone, already managing money.

As long as any general housekeeping duties performed do not go beyond 20% of the weekly working time spent by a “personal accompanying,” he or she is exempted from the protections of California Wage Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But prior to 2001, a classification as “personal accompanying” also excluded minimum wage in California.

This overtime compensation exemption also applies to “personal attendants” in addition as other household workers such as caregivers, spending 20% or less of their working time doing general household work, who are employed by an agency and sent to private households to work.

Benefits Of Household Workers:

A. Minimum Wage:

The state minimum wage covers all employees, including household workers (live-in employees, caregivers, and “personal attendants”) but excluding authentic independent contractors. The current California minimum wage is $8.00 per hour since January 1, 2008, a 6.7% increase over the past $7.50 minimum wage.

There are several factors that determine whether a person is an independent contractor or not. But the dominant factor is control by the employer of the method, manner and outcome of the job. An independent contractor runs his or her own household sets business, has his or her tools and materials, and controls the manner and outcome of the job.

Independent contractors are not covered by minimum wage and overtime compensation statutes.

B. Overtime Pay:

Household workers who are not live-in employees, in addition as “personal attendants” who do general household work that exceeds 20% of their weekly working time, are entitled to overtime compensation, consisting of one and one half times their regular rate of pay for working more than eight (8) hours in a day, or more than (40) hours in a week.

Live-in employees must be paid one and one half times the regular rate for all hours worked over twelve (12) hours (instead of over eight (8) hours) in one work day for five (5) workdays. On the sixth and seventh day, live-in employees must be paid double the regular rate for all hours worked over (9) hours per day. See California IWC Wage Order No. 15-2001 3(A)-(B) (8 Cal Code Regs. 11150(3)(A)-(B)).

Under federal law, 29 U.S.C. 213(a)(15), “any employee employed on a casual basis in domestic service employment to provide babysitting sets or any employee employed in domestic service employment to provide companionship sets for individuals who (because of age or infirmity) are unable to care for themselves” is granted exemptions from minimum wage and overtime pay.

C. Other Benefits Of Household Workers:

1. Hours And Days Of Work:

A live-in employee is entitled to at the minimum twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work should not go beyond twelve (12) hours, except that: (a) the employee must have at the minimum three (3) hours free of duty during the 12 hours span of work; and (b) the employee required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours must be paid one and one-half times the regular rate of pay for all such hours worked. See California IWC Wage Order No. 15-2001 3(A).

additionally, no live-in employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency. See California IWC Wage Order No. 15-2001 3(B).

2. Rest And Meal Periods:

Household workers are entitled to a ten-minute paid rest break for every four (4) hours of work under California IWC Wage Order No. 15-2001 12(A), and a thirty-minute meal period of every five (5) hours worked, just like others kinds of employees, under California IWC Wage Order No. 15-2001 11(A).

Otherwise, the employer shall pay the employee one (1) hour of pay at regular rate for each workday that the rest period, or the meal period is not provided. See California IWC Wage Order No. 15-2001 12(B), 11(D). But “personal attendants” are not granted rest and meal periods.

3. Meal And Housing Deductions From Wages:

The employer may subtract meal and housing credits from the employee’s paycheck if: (a) the employee truly uses the meals and is provided with housing; (b) meals and housing are used as salary to comply with the minimum wage; and (c) the employee executes a voluntary, written agreement, crediting meals and housing towards minimum wage.

Meal credit may be deducted as follows: breakfast – $2.45; lunch – $3.35, and dinner – $4.50. Housing may also be credited at $31.75 per week for a room ($26.20 if shared). See California IWC Wage Order No. 15 – 2001 10(C).

In summary, whether you are a caregiver or a “personal accompanying” entitled to particular wages and benefits in California or in other states depends on whether the general household work you do exceeds 20% of your total work time.

(The Author, Roman P. Mosqueda, practices wage and hour law in California.

This article is not legal advice, and no attorney-client relationship is formed with the reader. For specific labor law issues, consult a competent attorney.)

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