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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4885
Experience:  Extensive experience representing employees and management
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Hi Joseph, I have a live in caregiver employed through my

Resolved Question:

Hi Joseph,
I have a live in caregiver employed through my non medical agency, and he wants to work for 2 weeks straight and wants to take his days off 2 days in a month. Both he and my client agree but my question is, would it incur OT hours if we do that? If my caregiver waives his days off and decides to work instead, is he entitled to OT? Please enlighten me, thanks, XXXXX XXXXX appreciate your help.

Jackie
Submitted: 10 months ago.
Category: California Employment Law
Expert:  Joseph replied 10 months ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service today.

The answer to your question would depend on whether or not the employee is exempt from overtime under California law.

Caregivers are not eligible for overtime pay if they fall within the “personal attendant” exemption. To be exempt from overtime a caregiver or nurse must spend the majority of their time supervising, feeding, dressing someone, administering medications, bathing someone, bathroom assistance, trips to doctors and shopping for groceries and personal items.

Only if a caregiver or nurse spends more than 20% of their time performing duties which are not strictly caregiver duties, mainly housekeeping duties, are they entitled to overtime wages.

So, as long as the caregiver is spending 80 percent or more of his or her time doing the above duties (and less than 20 percent of his time doing housekeeping or other duties) he is not entitled to overtime, regardless of how many days he works in a row without a break.

I hope the above information is helpful.

Please let me know if you have any follow up or clarifying questions as I want to ensure that you are completely satisfied with my service.

If not, please remember to rate my answer positively so I get paid for my work.

Thanks and best of luck!
Joseph, Lawyer
Satisfied Customers: 4885
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 10 months ago.
I am confused because although it is under personal attendant exemption, it is still indicated that live in caregivers should only work 5 days in a week...and the 6th and 7th week should be paid time and a half. I looked it up under wage order 15. Is it the same as wage order 5?

Thank you for your previous reply, but that was what I was trying to clarify.
Thanks.
Expert:  Joseph replied 10 months ago.
Hello Jackie,

IWC 15 doesn't state that 'personal attendants' need to be paid time-and-a-half. That is for live-in employees, who are NOT personal attendants. (There are special rules for them distinct from non live-in employees).

Personal attendants are completely exempt from overtime law.

See this excerpt from The California Legal Recorder:

http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1187&context=pubs

If you are hiring a caregiver for a private residence (either yours or your elders), Wage Order 15-2001
usually applies. The next inquiry is whether or not the caregiver qualifies as a "personal attendant" under
that wage order. Personal attendants must be paid at least minimum wage but are exempt from overtime
pay and most other provisions of Wage Order 15-2001. A personal attendant under Wage Order 15-2001
can either be employed directly by the householder or by "a third party employer recognized in the health
care industry to work in a private household," such as a home health agency.
To qualify as a personal attendant, the employee must not spend more than 20 percent of total hours
worked on duties other than supervising, feeding, or dressing the elder. If the caregiver spends more than
20 percent of her time on general housekeeping duties, she is most likely not a personal attendant and is
entitled to overtime, meal and rest breaks, and other protections of Wage Order 15-2001. The
determination that a worker is a personal attendant is a fact-intensive inquiry.
Even if the caregiver is a personal attendant excluded from overtime rules, the worker must be paid for all
hours that she is under your control, whether or not she is at all times performing work duties. This means
that the worker must be paid at her regular hourly rate for all hours she is required to remain at the
residence. A live-in personal attendant, who must be "on call" 24 hours a day, must be paid for all 24
hours.
If the worker is not a personal attendant, overtime rules vary depending on whether the caregiver is a
"live-in" or not. A "live-in" caregiver, who is not a personal attendant, is entitled to 12 consecutive hours
off duty within every 24-hour period, and to three (nonconsecutive) hours off duty during her 12-hour work
shift. In other words, she has a nine-hour workday. For any hours beyond nine, she receives 1 1/2 times
her hourly rate. If she works on the sixth or seventh day in the workweek, she is entitled to 1 1/2 times her
hourly rate for the first nine hours and double time after nine hours.


I hope this helps clear up your confusion.
Customer: replied 10 months ago.
Thank you very much for clarifying this issue. I appreciate it.

Best,
Jackie
Expert:  Joseph replied 10 months ago.
No problem; happy to help!


Thank you for your positive rating of my service. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should you have future legal questions.


Please request me directly by placing “to Joseph” at the beginning of your question and/or requesting me directly.

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and best of luck,

Joseph


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