Caregiver Overtime Law Becomes Permanent

In September 2016 the Domestic Worker Bill of Rights (DWBR), which guarantees overtime pay for in-home caregivers, became permanent. Under the DWBR, in-home caregivers must be paid overtime compensation when working more than 9 hours a day or 45 hours a week.  In my experience, very few 24-hour caregivers are paid correctly.  With California’s increase in the minimum wage to $12.00 an hour, non-exempt caregivers who work 24-hour shifts must be paid a minimum of $378.00 a day.

If you are working as a caregiver and paid a day rate less than $378.00, under California law, you are not being paid any overtime and may have a substantial unpaid overtime claim.   

Often, employers attempt to avoid overtime liability by claiming the caregiver is an “independent contractor.” However, the DWBR defines in-home caregivers and personal attendants as domestic work employees, meaning that employers cannot lawfully classify them as independent contractors. Therefore, the law will likely invalidate any agreement that wrongfully classifies an in-home caregiver as an independent contractor.

The change in the overtime rules for caregivers first became effective on January 1, 2014, when the DWBR became law.  Previously, employees who worked in a private household and qualified as “personal attendants,” including caregivers and nannies, did not qualify for overtime. 

The DWBR eliminated the overtime exemption for personal attendants and provides that personal attendants “shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the workweek.”  This means that now caregivers, nannies and babysitters (with limited exceptions) must be paid overtime compensation.  Unfortunately, this law does not cover workers for In-Home Supportive Services (IHSS) and those caring for close family members. 

Under Labor Code § 1194, caregivers are not only able to recover their unpaid overtime in a civil action, but they also may recover reasonable attorney’s fees, costs and interest.  California law also provides for severe penalties to workers who are not properly paid overtime compensation. 

If you are working as a caregiver and you are not paid overtime compensation when working more than nine hours a day, or 45 hours a week, you should consult with Chaleff Rehwald Peterson to discuss your rights under this law.  With the penalties, interest and attorneys fees allowed, claims often exceed $100,000 for 24-hour caregivers who have worked one year.  However, even if you have only worked three to six months, you likely have a valuable claim.   

Post written by Daniel Chaleff, Caregiver Attorney of Chaleff Rehwald Peterson.  Mr. Chaleff has been practicing employment law for over 25 years. He will provide a free and confidential consultation to anyone seeking to learn more about caregiver law. Call (818) 807-4168.