With an aging population, many families hire employees to care for an elderly family member. These caretakers do not need to be paid overtime if they meet the definition of a “personal attendant”: “any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision.”
The California Wage Orders provide that the personal attendant exemption applies when no significant amount of work other than the above is required. Significant means twenty percent of the time. The exemption is designed to control homecare costs for elderly individuals who need help with daily living activities, and thus avoid the need for institutionalization, while maintaining the overtime pay requirements for all other types of domestic work.
In Cash v. Winn (2012) ____ Cal.App.4th _____, the court of appeals determined that a personal attendant does not lose the exemption simply because she performs on a regular basis some healthcare functions, such as checking blood sugar levels or monitoring a pulse. The court rejected opinion letters from the Department of Labor Standards Enforcement that suggested that no healthcare functions could be performed at all, regardless of the amount of time spent on such functions. The court did warn, however, that healthcare duties likely count toward the twenty percent limit, meaning that the employee would lose the exemption if she spent more than twenty percent of her time on these activities.
When hiring a personal attendant, it is important to clearly define the attendant’s duties to ensure that the employee meets the exemption and does not spend more than twenty percent of the time performing non-exempt work, such as general household cleaning or assisting with healthcare. A written employment agreement describing job duties is an important document that will evidence the parties’ expectations should any disputes arise.