Home Care Legal Update for California Members

.​HCAOA Associate Member Bob King, Esq., Legally Nanny, represents hundreds of home care agencies in California and nationwide, and has spent much of this time defending home care agencies in wage and hour litigation. He reports that the same claims come up again and again in these cases, so he put together a brief overview of pertinent issues and what owners and managers can do to protect their home care agencies.

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Personal attendant exemption: The personal attendant exemption in Wage Order 15 is the bedrock of California’s home care industry. It limits overtime and eliminates doubletime and meal and rest period requirements. Most personal attendants working in private homes qualify for this critical exemption, yet it is amazing how many agencies don’t even mention the exemption requirements in handbooks, job descriptions, client service agreements or other documents. PLEASE make sure you have policies in your client and employee documents supporting the personal attendant exemption.
 
Rounding: Let me be blunt: If you’re rounding time, you should stop immediately. California law requires that rounding be neutral and not benefit the employer. Even though the practice may seem neutral on the surface, in every case we’ve defended, statistical analyses demonstrate that rounding favors the employer. Although we understand paying employees to the minute can be a hassle and costly, legally it is a far safer way to go.
 
Cell Phone Reimbursement: It is well established that employers must reimburse employees for work-related expenses, including personal cell phone use for work-related purposes. Yet it is stunning how many employers don’t reimburse employees for this expense. We understand this is a cost to your agency that you can’t recoup from clients. However, you need to reimburse employees and have an appropriate policy in place to protect your agency.
 
Calculating Overtime: If you pay different rates of pay in the same work week to the same employee, you must use a weighted average of the regular rates to determine the correct overtime rate. You cannot just pay 1.5 times the rate in effect at the time overtime occurs. This is a technical issue but it can lead to underpaying caregivers and liability. If you use payroll software, please make sure your settings for overtime calculation are correct.
 
On-Call Work: Everybody hates dealing with on-call work – we get it. Just remember that you must pay for all hours the employee actually works during on-call time. On-call hours also count as hours worked for purposes of calculating daily and weekly overtime. Finally, any stipend you pay for on-call time must be included in the regular rate for overtime calculation purposes.
 
Travel Time: If an employee travels from one worksite to another during the same work day, you must pay the employee for travel time AND reimburse the employee for mileage. The IRS mileage reimbursement rate for 2022 is 58.5 cents per mile. Also if you schedule a break in the caregiver’s work day, you may owe a split shift penalty. If you don’t know what a split shift penalty is, that could indicate you may have a problem. :-)
 
Record Requests: If you receive a request from an employee or an attorney requesting the employee’s records, you must comply with it. Please do not ignore it, as that could create additional liability. Further, such a request can be a precursor to litigation or a California Private Attorneys General Act (PAGA) claim, so you should contact your attorney if you receive such a request.
 
These issues are complicated, and the above statements are just a summary. This summary is not legal advice. If you have specific questions, please contact Legally Nanny directly at 714-336-8864 or [email protected].