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.