Personal Attendants Vs Companions: Definitions and Exemptions

California’s Industrial Welfare Commission Wage Order 15 9Effective April 1, 1986) defines “personal attendant” to include babysitters and any person employed directly by a private householder or indirectly through a third-party employer to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision.

It provides an exemption to over-time pay, meal period, rest period, and record-keeping requirements for individuals who qualify as personal attendant, except minimum wage.

Other Work Not Exceed 20% of Work time:

But to retain the exemption, a amount of “other work”, meaning not more than 20 percent of the employee’s work time. Housekeeping chores are considered “other work” counted against the 20 percent limitation.

In general household work exceeds 20 percent of the total weekly hours worked, the exemptions is lost.

Thus, in Cardenas v. Mission Industries, 226 Cal.App. 3rd 952, 277 Cal. Rptr. 247 (1991), the court affirmed the decision that a line-in worker did not qualify as a personal attendant because the employee did substantial amount of work unrelated to the care of children, to wit: grocery shopping, doing laundry, running errands, preparing dinner for entire household.

But personal attendants subject to Wage Order 5 (Public housekeeping industry) and not Wage Order 15 (household occupations) may work additional hours in an emergency but must be paid time and one-half for excess hours.

Live-In Employees Pay:

Section 3 (A) AND (B) of Wage Order 15 entitles live-in employees to time and one-half for the first nine (9) hours worked on a sixth or seventh day double time for hours in excess of nine on such days.

But live-in domestic employees have complete overtime exemption under Section 13(b)(21) of the Federal Fair Labor Standards Act, and partial overtime exemption in Wage Order 15.

And household domestic workers who receive board and boding may be paid once a month on day designated in advance by the employer, per California Labor Code Section 205.

Who Are Not Personal Attendants:

The California Division of Labor Standards Enforcement (D.L.S.E.) has stated that licensed vocational nurses (LVN) and workers who regularly give medication or take temperatures pulses, or respiratory rates do not normally qualify as personal attendants.

But isolated assistance with medication has been interpreted as included in “supervision” work by a personal attendant.

Moreover, the exemption does not apply if service are performed by trained personnel such as a registered or practical nurse, but a certified nursing assistant (CNA) is not considered a trained personal, per Ninth Circuit in McCune v. Oregon Senior Services Division, 894 F.2d 1107, 1111 (9th Cir. 1990).

Lastly, the exemption does not apply to services not performed in a private home, nor applicable to the care of minor children who are not mentally or physically infirm.

Sleeping Time Compensation:

A live-in employee is not considered to be working when he or she is freed from all duties and may leave the premises for his personal purposes, including periods when he or she eats, sleeps, entertain. These are not house worked.

So, employers and employees are encouraged to agree on reasonable arrangement under Wage Order 5 (public housekeeping industry), but not under Wage Order 15.

But California’s Wage and Hours Division Considers all sleeping time as hours worked, if an employee is required to be on duty for less than 24 consecutive hours.

If an employee is required to be on duty for 24 hours or more consecutive hours, the employee and employers may agree to exclude from hours worked a sleeping period of not more than eight hours, as well as exclude meal period from hours worked

Source by Roman Mosqueda, S. J.D.

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