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socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 33515
Experience:  Retired (mostly)
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Caregiver labor law

Customer Question

Two live ins -both work five days and stay there 7 days.hours are 7am- 8pm each with four hour breaks during those hours .they can sleep between 8pm and 7am excepts a elderlyman will wake them up about two times to go to bathroom takes about 15 mins each time. One works m-t-w-th-sun other t-w-th-fri-sat then we have a third worker 32 hours to relieve them on there two days. Do we have to pay them all night or just the 30min wake up time and the 9hrs they work in day each. We pay 8.00 for 40 hrs and 12.00 anything over forty and below 60
Submitted: 9 months ago.
Category: California Employment Law
Expert:  socrateaser replied 9 months ago.
Hello,

Caregivers in a residential facility are covered by IWC Order #5-2001, as "personal attendants." The regular overtime laws do not apply except to the extent that hours in excess of 40 per week must be compensated at "time and a half," and the employees cannot be required to work more than 6 days in 7, except in an emergency.

Concerning sleep time, the rules are controlled by the case of Aguilar v. Association for Retarded Citizens, 234 Cal. App. 3d 21 (1991):

1. Employees who are required to live and sleep on the premises, effectively 24 hours per day, must be compensated for their on-premises sleep time, unless they agree in writing to receive an "uninterrupted 8 hours" of sleep.

2. Employees who are not required to live and sleep on the premieses 24 hours per day, must be compensated for their on-premises sleep time, and they cannot voluntarily agree in writing to a the 8 hour exemption described in #1, above.

Based upon your stated facts, your two regular employees must be compensated for their sleep time, because even if they were to agree to the 8-hour uninterrupted sleep time, as soon as they are awakened by the elderly man, the employees are entitled to be compensated for their entire sleep period.

Concerning the relief employee, I don't have enough information to resolve the question. However, if the employee is required to sleep on the premises, and the same circumstances apply to the relief employee concerning the elderly man, then the relief employee is also required to be compensated for sleep time.

Please let me know if my answer is helpful or if I can provide further clarification or assistance.

Customer: replied 9 months ago.
So a caregiver has to have 8 hrs no wake up time .i heard five hours straight. I also heard two wake up in eight hours is ok and we pay for that time they are awake..so if one time during there sleep is disturbed they get 8 hrs. Or can it be eight different hours in day or it has to be in a row.
Expert:  socrateaser replied 9 months ago.

So a caregiver has to have 8 hrs no wake up time .i heard five hours straight. I also heard two wake up in eight hours is ok and we pay for that time they are awake..so if one time during there sleep is disturbed they get 8 hrs. Or can it be eight different hours in day or it has to be in a row.

A: Regardless of what you may have heard, the California 4th District Court of Appeals, in the Aguilar case, requires that the employee must receive eight (8) "uninterrupted" hours of sleep in order for the employer to avoid liability for wages during the employee's sleep time. This means eight consecutive hours, not hours divided over different work days.

 

I realize that this may be inconvenient for you as an employer, but it's the law, so if your employee complains to the Division of Labor Standards Enforcement (DLSE), you will be liable for additional wages and waiting time penalties, if DLSE determines that the employee is interrupted during the eight-hour sleep period.

 

Hope this helps.

socrateaser, Lawyer
Satisfied Customers: 33515
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you
Expert:  socrateaser replied 9 months ago.
Hello again,

I've been doing some additional research about your question, and It appears that there is a very recent Court of Appeals case: Mendiola v. CPS SECURITY SOLUTIONS, INC. (2013) 217 Cal.App.4th 851, which apparently holds that where an employer and employee enter into an agreement whereby the employee working a 24-hour shift will not be compensated for eight hours of sleep time, as long as he or she receives at least five hours of uninterrupted sleep time during the eight hours.

The case concerned security personnel not caregivers -- and I do not believe that this case is applicable to personal attendants/caregivers -- because of the exemption provided to personal attendants from the overtime hours found in IWC Order 5-2001 3(E).

However, as the case exists, and regardless of what I believe, you have a credible argument that
the Mendiola case applies to personal attendants, and so, you'll have to decide if you want to take the chance that DLSE and/or the courts would apply the 5 hour uninterrupted sleep rule to your employees.

Best wishes.

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