Caregivers to get overtime

Big changes are under way for caregivers and their employers. Up until now, caregivers in disabled people’s homes have been exempt form overtime under California and federal law so long as they spend the bulk of their time actually giving care. On September 23, Governor Brown signed Assembly Bill 241, under which, starting January 1, 2014, most in California working more than 9 hours in a day or 45 in a week will get time and a half. That’s still one more hour at regular pay every day than everyone else, who get overtime after eight. And caregivers paid by government agencies, including those paid by In Home Support Services, will still be exempt.

But not for long. But not for long. A year later, even bigger changes kick in under federal law. Caregivers will get overtime after forty hours from an agency that employs them. Most caregivers are considered employed by both the person and by an agency, and only the agency will owe overtime to these jointly employed caregivers.

The new federal rules will not make a family employing a caregiver pay overtime. But they will limit what the family can have the caregiver do. A too-helpful caregiver who washes everyone’s dishes or changes the disabled person’s bandages gets overtime.

Under the new rules, exempt caregivers will have to spend most their time “elder sitting”: talking, playing games, reading out loud, going on drives or walks, or just being there in case something happens. Caregivers can also spend up to twenty percent of their time doing things like cooking for their charges, cleaning, washing their clothes, and bathing them.

Any one doing much more than that gets overtime. They cook, clean, or do laundry for the rest of the family, and they get time and a half.

Many caregivers do little things that ordinarily a nurse does. They might dress wounds, take blood pressure, check insulin levels, give medications, even give shots. Under the new rules, a caregiver doing anything like that is a regular employee.

Anyone hiring a caregiver for a disabled relative should talk to an attorney about what they can ask the caregiver to do without having to pay overtime. A good rule of thumb is that if a housekeeper or if nursing-home staff would do it, the caregiver can’t. Housekeepers and nursing-home staff get overtime, and a caregiver doing the same work should, too.

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3 Responses to Caregivers to get overtime

  1. Sarah says:

    I’m still confused over this. I am a live in caregiver for a paralyzed woman., I’m hired privately by the family. I am paid for 56 hours a week. I work 7 days a week and I don’t get time off. Ever. I haven’t had a day off in 3 years. It is supposed to be a staff of 3 yet it’s just me. I actually work closer to 70 hours a week. But get paid regular time for 56 only. This woman is total care. Paralyzed form the chest down and requires a whole lot of care, She has wounds, is diabetic and has hypertension. Even on my breaks I am in there on my own time helping her. If this overtime law is truly out there, am i eligible or exempt? I am educated and know how to read however i just don’t understand the language of this law. What is the 20% medical part? Is it that i do too much medical care to get overtime? Sorry if I am coming off as really dumb but I need to know, as my employer 3 months ago deducted money from my pay to pay for a housekeeper. I never asked for a cleaner. She comes once a week and the house looks the same when she leaves as it did when she got here. So I’d also like to know if it’s even legal to take money from my paycheck to pay someone to clean once a week.
    I really need answers here.
    Thank you

  2. fusceschen says:

    Don’t feel even the slightest bit dumb. These matters are complicated, and I certainly can’t resolve them here. I cannot give you legal advice on a blog. You should talk to a lawyer who knows employment law right away.

    In general, you are supposed to be getting time and a half for every hour worked over 45 in a week. Whether they can dock your pay to pay for a housekeeper is a difficult question. If the employer just started paying you less to pay a housekeeper, then it may be okay. But your employer cannot dock your pay so that you end up getting less than minimum wage. Nor can your employer pay the housekeeper and then deduct taxes from your paycheck on the amount that you are no longer getting.

    Under the 20-percent rule, you must spend at least 80 percent of your time taking care of, or just sitting, the person who needs care. If you spend more than twenty percent of your time doing general household work or doing things for other people in the house, you are no longer a “personal attendant” but just an employee like everyone else. You then get overtime after eight hours in a day, and your employer cannot make you work more than five days in a week.

    The medical rule applies under federal law. If you do anything to provide medical care for the person, including giving medicine, taking a temperature, changing bandages, or helping her roll over in bed, then you are, again, like any other employee and must get overtime after 40 hours.

    Good luck to you.

    • Sarah says:

      Thank you for clearing some of this up. I do personal/medical care I’d say 95% of the time during a shift and cleaning up after meals the other time. I do house cleaning on my off time. There are no other people in the house besides us two.
      My boss fired the house cleaner two weeks ago yet refuses to put my pay back to where it was pre-house cleaner. I don’t get that.
      But I for sure have never been paid over time in 3 years and have worked 7 days a week for three years with not one day off. I’m so tired. Thank you for responding. I want to get my over time but I’m afraid to approach her with it.

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