Caregiver Versus Personal Attendant – Wages and Benefits

Are you a caregiver or a claimed accessory who works in a clandestine domiciliary or home? As a domiciliary artisan either as a caregiver or claimed attendant, are you advantaged to minimum wage? Over-time pay? Added benefits?

If assassin anon by an alone or family, your allowances are altered from one who is assassin by a clandestine close or bureau and absolute by accepted application laws: applicative federal and accompaniment statutes.

A chambermaid agent as against to a live-out agent is accountable to appropriate plan rules discussed below.

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

“… an ambassador or an agent of…public or clandestine accessories or agencies, or bodies accouterment affliction or casework for elders or abased adults, including associates of the abutment agents and aliment staff.”

A “personal attendant” is not advantaged to overtime compensation, unless: (1.) he or she is a chambermaid employee; or (2.) he or she does accepted domiciliary plan (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the absolute plan time; or (3.) he or she does nurse-like duties (checking pulse, demography temperature, giving medication) added than 20% of the absolute plan time.

In these three instances, the domiciliary artisan is no best advised a “personal attendant” and is advantaged to overtime pay. Otherwise, ablaze abode befitting and affable affairs authorize as plan absolved from overtime compensation.

Personal Accessory As Authentic In CA IWC Allowance Order 15:

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

“‘Personal attendant’ includes babyish sitters and bureau any being active by a clandestine aborigine or by any third affair employer accustomed in the bloom affliction industry to plan in a clandestine household, to supervise, augment or dress a adolescent or being who by acumen of avant-garde age, concrete disability, or brainy absence needs supervision. The cachet of ‘personal attendant’ shall administer if no cogent bulk of plan added than the above is required.”

Indeed, the California Division of Activity Standards Enforcement (DLSE) has historically adopted the accepted acclimated in the federal regulations, 29 C.F.R. 552.6 on “companionship services,” to wit:

“…(T)he appellation ‘companionship services’ shall beggarly those casework which accommodate fellowship, care, and aegis for a being who, because of avant-garde age or concrete or brainy infirmity, cannot affliction for his or her own needs. Such casework may cover domiciliary plan accompanying to the affliction of the age-old or ailing being such as meal preparation, bed making, abrasion of clothes, and added agnate services. They may aswell cover the achievement of accepted domiciliary work: Provided, however, that such plan is incidental, i.e., does not beat 20 percent of the absolute account hours worked.”

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

“The appellation ‘companionship services’ does not cover casework accompanying to the affliction and aegis of the age-old or ailing that crave and are performed by accomplished personnel, such as registered or applied nurse.”

Thus, the adequate duties of a “personal attendant” absorb activities of circadian active such as accepting in or out of bed, showering, bathing, application a toilet. A “personal attendant’s” duties of “supervising” would cover abetment in accepting medical care, advancing meals, arcade for claimed items or groceries, application a telephone, even managing money.

As continued as any accepted housekeeping duties performed do not beat 20% of the account alive time spent by a “personal attendant,” he or she is exempted from the protections of California Allowance Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But above-mentioned to 2001, a allocation as “personal attendant” aswell afar minimum allowance in California.

This overtime advantage absolution aswell applies to “personal attendants” as able-bodied as added domiciliary workers such as caregivers, spending 20% or beneath of their alive time accomplishing accepted domiciliary work, who are active by an bureau and beatific to clandestine households to work.

Benefits Of Domiciliary Workers:

A. Minimum Wage:

The accompaniment minimum allowance covers all employees, including domiciliary workers (live-in employees, caregivers, and “personal attendants”) but excluding accepted absolute contractors. The accepted California minimum allowance is $8.00 per hour back January 1, 2008, a 6.7% access over the antecedent $7.50 minimum wage.

There are several factors that actuate whether a being is an absolute architect or not. But the primary agency is ascendancy by the employer of the means, address and aftereffect of the job. An absolute architect runs his or her own domiciliary casework business, has his or her accoutrement and materials, and controls the address and aftereffect of the job.

Independent contractors are not covered by minimum allowance and overtime advantage statutes.

B. Overtime Pay:

Household workers who are not chambermaid employees, as able-bodied as “personal attendants” who do accepted domiciliary plan that exceeds 20% of their account alive time, are advantaged to overtime compensation, consisting of one and one bisected times their approved amount of pay for alive added than eight (8) hours in a day, or added than (40) hours in a week.

Live-in advisers accept to be paid one and one bisected times the approved amount for all hours formed over twelve (12) hours (instead of over eight (8) hours) in one plan day for 5 (5) workdays. On the sixth and seventh day, chambermaid advisers accept to be paid bifold the approved amount for all hours formed over (9) hours per day. See California IWC Allowance 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 agent active on a accidental base in calm account application to accommodate babyminding casework or any agent active in calm account application to accommodate accompaniment casework for individuals who (because of age or infirmity) are clumsy to affliction for themselves” is accepted exemptions from minimum allowance and overtime pay.

C. Added Allowances Of Domiciliary Workers:

1. Hours And Canicule Of Work:

A chambermaid agent is advantaged to at atomic twelve (12) after hours chargeless of assignment during anniversary banal of twenty-four (24) hours, and the absolute amount of hours for a day of plan should not beat twelve (12) hours, except that: (a) the agent accept to accept at atomic three (3) hours chargeless of assignment during the 12 hours amount of work; and (b) the agent appropriate or acceptable to plan during appointed off-duty hours or during the 12 after off-duty hours accept to be paid one and one-half times the approved amount of pay for all such hours worked. See California IWC Allowance Order No. 15-2001 3(A).

Moreover, no chambermaid agent shall be appropriate to plan added than 5 (5) canicule in any one workweek after a day off of not beneath than 24 after hours except in an emergency. See California IWC Allowance Order No. 15-2001 3(B).

2. Blow And Meal Periods:

Household workers are advantaged to a ten-minute paid blow breach for every four (4) hours of plan beneath California IWC Allowance Order No. 15-2001 12(A), and a thirty-minute meal aeon of every 5 (5) hours worked, just like others kinds of employees, beneath California IWC Allowance Order No. 15-2001 11(A).

Otherwise, the employer shall pay the agent one (1) hour of pay at approved amount for anniversary banal that the blow period, or the meal aeon is not provided. See California IWC Allowance Order No. 15-2001 12(B), 11(D). But “personal attendants” are not accepted blow and meal periods.

3. Meal And Apartment Deductions From Wages:

The employer may decrease meal and apartment credits from the employee’s paycheck if: (a) the agent in fact uses the commons and is provided with housing; (b) commons and apartment are acclimated as bacon to accede with the minimum wage; and (c) the agent executes a voluntary, accounting agreement, crediting commons and apartment appear minimum wage.

Meal acclaim may be deducted as follows: breakfast – $2.45; cafeteria – $3.35, and banquet – $4.50. Apartment may aswell be accustomed at $31.75 per anniversary for a allowance ($26.20 if shared). See California IWC Allowance Order No. 15 – 2001 10(C).

In summary, whether you are a caregiver or a “personal attendant” advantaged to accurate accomplishment and allowances in California or in added states depends on whether the accepted domiciliary plan you do exceeds 20% of your absolute plan time.

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

This commodity is not acknowledged advice, and no attorney-client accord is formed with the reader. For specific activity law issues, argue a competent attorney.)