Take Care to Learn the Changing Rules for Hiring and Paying Elder Caregivers

California’s strict employment laws pose threats to unsuspecting elders; at the same time, caregivers are being deprived of their rights.

A caregiver can make it much easier to care for an elderly loved one—but hiring a caregiver can be trickier than you’d expect.

There are many employment laws to understand, some of which will change in 2020—such as a new ban on arbitration clauses in contracts.

Here’s what you need to know.

An Overview of Caregiver Compensation and Working Conditions

California employment law is the strictest in the country. It imposes requirements for when and how an employee is compensated, may take a break, or can utilize sick time. California also imposes serious penalties for employers who violate these laws—including penalties payable to the state as well as employees. A mistake can cost an employer thousands of dollars.

Within that complex web of laws, elder caregivers are subject to some exceptions because of the nature of their work. But those exceptions do not leave the minefield of labor law any less treacherous for the unsuspecting employer—or the unsuspecting customer of a caregiving company.

Because of the intimate nature of the time and tasks caregivers provide, a court might find the family or elder to be an employer.

Eldercare refers to the nurses, caregivers, and assistants who help seniors and others who need assistance with basic daily care needs, including bill paying bills, feeding, clothing, washing, and home maintenance. Live-in caregivers are entitled to 12 consecutive off-duty hours each day except in certain emergency situations. They get three hours of nonconsecutive, off-duty break time during a 12-hour shift. The law also requires that they receive 24 hours off duty after every five days of work, except in certain emergencies.

Non-live-in caregivers are entitled to meal and rest breaks. Their unpaid, 30-minute, off-duty meal break for shifts over five hours must begin before the end of the fifth hour of work. If the shift exceeds 10 hours, the caregiver gets a second 30-minute, off-duty break.

California mandates that an employee’s pay stub must include an employee ID number or the last four digits of the employee’s Social Security number, the exact number of hours worked, all rates of pay, the pay period, and the payer’s address.

[To read more of Scott Rahn’s thought leadership click here]

Who Is an Employer—and Why Does It Matter?

In California, “employer” has three definitions. An employer is anyone who:

(1) “Suffers or permits” another to perform work, which means anyone who knowingly allows another person to perform work on their behalf;

(2) Exercises control over the working conditions of the worker; or

(3) Contracts with the worker to create an employment relationship.

If a court determines that a person or entity meets any one of the three definitions, the person or entity is required to comply with the strict laws that California imposes.

For eldercare workers, the second definition causes the most problems. Caregivers provide services that require significant instruction from, and tailoring to, the individual for whom they are caring. Arguably then, definition (2) makes the elder an “employer” under California law.

That is true even though it is counterintuitive, especially considering that many caregivers work for companies that the elders contact to obtain services. To the unsuspecting elder or their family, contacting a caregiving company is no different than calling a company who sends out a plumber. The family would not be an employer of the plumber. But because of the intimate nature of the time and tasks caregivers provide, a court might find the family or elder to be an employer.

As a result, caregivers have begun filing lawsuits against individual elders and their families, in addition to the contracting company. Each case will be different—some families may prevail where others face significant financial liability for unpaid wages or other labor-law violations.

[For more on RMO Lawyers’s approach click here]

New Laws Make It Harder to Contain the Cost of Legal Disputes

For many years, employers have utilized arbitration clauses and other limiting language—like limits on “class” or “representative” actions—to contain the cost of legal disputes that arise from labor-law violations. Arbitration clauses require that any dispute be heard by a privately paid decision-maker rather than through court. The clauses also make arbitrator decisions binding and subject to very limited review by the courts. Arbitration is often seen as faster, more efficient, and cheaper overall for employers, especially because the arbitrators’ decision can be appealed only on limited grounds.

But Assembly Bill 51 mandates that any employment contract commenced after Jan. 1, 2020, may not include an arbitration clause as a condition of employment. New employment disputes will proceed through the courts, usually at a higher cost to the defendants.

Families: Protect Yourselves

When contacting a caregiving company to arrange eldercare, families should read the contracts carefully. Ensure that the company agrees that they are the employer of the caregiver. Also have the company confirm that it has workers’ compensation insurance, provides detailed pay stubs to the caregiver, and gives the caregiver a notice regarding their working conditions and rights to breaks and rest periods. Families should also ensure that the caregivers are receiving the breaks to which they are entitled.

Families who are sued by caregivers should immediately contact an attorney with specialization in this area such as RMO, which addresses such issues every day.

Caregivers: Assert Your Rights

Labor laws are enforced by the U.S. Department of Labor, Wage and Hour Division and the California State Labor Commissioner’s Office. However, the vast majority of claims are addressed in the civil courts with the help of labor and employment counsel familiar with eldercare issues.

If you’re a caregiver who has been hired directly by a family, or if you work for a company that isn’t complying with the law, you should quickly contact an attorney to ensure your rights are protected. There are time limitations on when you can file an action, and if you don’t meet them, you won’t be compensated for your work.

Generally, there is no cost to the victim out of pocket, as attorney fees and costs should be paid by the settlement or judgment from the court.

Call RMO today for a consultation.

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RMO LLP provides personal, cost-effective litigation services to individual and institutional clients. The firm’s attorneys focus on trust, estate, probate, conservatorship, securities, business, and employment disputes. RMO has offices in Los Angeles, Orange County, and San Diego. For more information, visit rmolawyers.com.

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