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  • Robert Nuddleman to Present Seminars at PFAC 20th Annual Education Conference

    I’m excited to be able to work with the Professional Fiduciary Association of California next week at their 20th annual education conference San Francisco, CA.  PFAC is a wonderful organization that provides continuing education and promotes minimum standards in the administration of conservatorships, guardianships, trusts, estates and durable powers of attorney.  I’ve had the pleasure of working with several of their members and their clients to develop strategies for in-home care and assistance with elderly and disabled clients in conjunction with third-party care agencies.  I’m always impressed by their level of professionalism and commitment.

    In the past, I’ve conducted seminars for PFAC regarding the difference between independent contractors and employees, how to employ caregivers correctly, and employment law updates.  This year, I will be co-presenting a 3-hour intensive seminar called: Hiring, Employing, Supervising, and Disciplining Workers.  I will also conduct a breakout session about Workplace Policies and Procedures for Caregivers where I can share some tips regarding caregiver rights and employer responsibilities.  This year’s conference will also include roundtable discussions for a more direct educational experience, where I will discuss how to handle workplace performance and discipline issues.

    I’m really looking forward to this year’s conference.  If you are attending the conference, please look for me and say, “Hi.”

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Interesting Article Regarding New Regulations Regarding Homecare

    The New York Times ran a blog article regarding an interview with Select Home Care regarding ways some employers are considering to survive recently enacted and currently pending changes regarding in-home care.  The implementation of AB241 requiring overtime for caregivers in California and soon-to-be-imposed federal regulations requiring overtime for caregivers throughout the nation has employers scrambling to consider how they can keep in-home care affordable and profitable.

    The article suggests three alternatives employers are considering:

    1. Raise rates to cover the increased costs, which will mean fewer people will be able to afford in-home care.  Raising the costs will not increase the profit margins, but will result in fewer clients which means companies will have to do more with less.  Companies could hire more workers so the employees each work fewer hours, but that will reduce the employee’s income and require more managers to oversee the work.  This doesn’t result in more money for the workers but could help keep the cost to the client down.
    2. Switch employees to independent contractors.  The article makes it seem like this is a viable option, but I have serious doubts this will be an effective solution.  Particularly in California where there are hefty fines for willfully misclassifying an employee as an independent contractor, and given the broad definition of “employer,” under AB241, I don’t recommend this course of action in most cases.
    3. Change the business model to a referral agency.  Referral agencies do not employ the workers, but can still help families locate and hire quality workers.  This could lower the costs for the families because they are not having to pay the profit margins for the caregivers, but it comes with its own sets of risks.  Most likely, the family will become the employer, which means the family needs to understand and comply with the myriad of laws impacting employers and employees.  This can be a daunting concern.

    The article quotes a few other industry professionals, and most seem to agree that the first option (raising prices to cover the costs) is the safest route.  I agree.  Hiring more caregivers, each working fewer hours, will help keep the costs down, but can impact the continuity of care.  This is particularly important for clients with Alzheimer’s or dementia.  Instead of having one worker working a 24-hour shift, you’ll end up with two to four workers working shorter shifts.  Financially this is the best option.  I don’t know if this will be the best option for providing quality care to the elderly and disabled.

    Governor Brown (CA-D) has taken the position that the best way to deal with the increasing costs is to limit the number of hours the employees work.  That is why his budget proposal does not allow caregivers under the state’s In-Home Support Services program to work more than 40 hours per week.  Of course, Governor Brown hasn’t indicated how the clients will care for themselves during the remaining 128 hours of the week.

    There is one last assumption in the article that bears addressing.  All of the sources seem to imply that they can deduct up to 8 hours of sleep time for 24-hour shifts.  Because the California Supreme Court granted review of Mendiola v. CPS Security Solutions, Inc. in the fall of 2013, we cannot guarantee that an employer can deduct for sleep time.  While the federal regulations allow employers to deduct for sleep time, the issue has not been decided in California.  Employers in California that deduct for sleep time may run the risk of having to go back several years to pay for the uncompensated hours of work.

    The New York Times blog promises to do a follow-up with Select Home Care to check on their progress.  If you, or someone you know, uses or provides in-home care, you should speak with a knowledgeable employment attorney to understand the rights and obligations imposed by the law.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • FAQ’s Regarding California’s Caregiver Overtime Laws

    With the new overtime requirements under the newly enacted Domestic Workers Bill of Rights (AB241), I’ve received a lot of questions about how the law will impact caregivers and the families they serve.  Many employers and employees do not understand their rights and obligations.  Hopefully, the following answers to some of the common questions I’ve been receiving will help clarify the law.

    Keep in mind, this is a newly enacted statute with some ambiguities.  Future cases or amendments could affect my interpretation of the statute.

    Q: My employer told me that they are reducing my pay rate so they can afford to pay overtime.  Can my employer do that?

    A: Usually, yes.  Most employees are employed “at-will.”  This means the employer or the employee can terminate the employment relationship at any time, with or without notice, and for any reason or no reason (except an illegal reason).  When an employer lowers an employee’s pay rate, the employer is effectively terminating the old employment relationship and offering new employment under the new lower rate of pay.   Your continued employment constitutes acceptance of the terms of the unilateral contract.  As long as the employer notifies you of the new terms of employment (e.g., the new rate of pay), the employer can change the terms.  An employer may not retroactively alter the terms of employment.

    Employers are supposed to provide employees a new Notice to Employee under Labor Code section 2810.5 whenever the employer changes the employee’s pay rate (or any other item included in the 2810.5 Notice to Employee).

    Q: Can an employer deduct the cost of room and board from an employee’s pay?

    A: Yes, if the employer provides meals and lodging to an employee, even if the meals and lodging are provided at the client’s site, an employer can deduct specific amounts for the meals and lodging as a credit against the employer’s minimum wage obligations.  The employer must have a written agreement, and can only deduct up to certain amounts specified in the wage order.  Generally speaking, the amounts an employer can deduct are fairly low and are usually well below fair market value (For example, an employer can only deduct $2.90 for breakfast, $3.97 for lunch, $5.34 for dinner, and $37.63 per week for an unshared room), and the employee must actually receive the meals or lodging if the employer is going to use that as a credit against the employer’s minimum wage obligation.

    Q: Can I pay a caregiver a “daily” or “weekly” rate?

    A: You can, but you shouldn’t.  A daily or weekly rate is a salary.  The law says that a salary only compensates an employee for the “regular nonovertime hours” worked.   For a domestic work employee that qualifies as a personal attendant, this means the first 9 hours in a day or the first 45 hours a week.  If you pay a worker a daily or weekly salary, you are not paying the employee for any overtime hours.  All caregivers should be paid by the hour and should be paid for all hours worked.

    Q: Can my employer deduct for sleep time?

    UPDATE:

    The California Supreme Court granted review of Mendiola v. CPS Security Solutions, Inc. in the fall of 2013.  Until the Supreme Court issues its decision, employers may not be able to rely on the sleep time rules stated below.  If you have questions about your work situation, contact an attorney familiar with California’s overtime requirements.

    A: Under Mendiola v. CPS Security Solutions, Inc, an employer can deduct for sleep time as long as:

    1. The employee regularly receives at least 5 hours of uninterrupted sleep;
    2. The employee is provided a comfortable place to sleep;
    3. The employer and employee agree (preferably in writing) that the sleep time is not compensable; and
    4. The employee works a 24-hour shift.

    If any of those factors are missing, the employer cannot deduct for sleep time.  Additionally, the employer can only deduct the actual number of rest time hours, up to a maximum of 8 hours per 24-hour shift.  So, if the employee only receives 6 hours of uninterrupted sleep, the employer can only deduct those 6 hours.  If the employee receives 10 hours of uninterrupted sleep, the employer can only deduct a maximum of 8 hours.

    As noted in the update above, Mendiola v. CPS Security Solutions, Inc. is currently under review and therefore an employer may not be able to avail itself of the sleep time rules.

    See my article for more detailed information.

    Q: If I work in San Jose, but the care agency that employs me is located outside of San Jose, am I still entitled to the San Jose minimum wage?

    A: Yes.  Certain cities, such as San Jose and San Francisco, have adopted their own minimum wage ordinances.  Any employees performing work within the geographical boundaries of the specified cities must receive the minimum wage set by the ordinances.  In San Jose, the minimum wage is $10.15 per hour.  In San Francisco, the minimum wage is $10.74 per hour.

    Q: My employer wants me to become an independent contractor.  Is that legal?

    A: Likely not.  There are a number of factors that determine whether a worker is an employee or an independent contractor, and the tests can differ from agency to agency.  Under the Domestic Workers Bill of Rights, an employer includes anyone that exercises control over the employee’s hours, wages or working conditions.  It is hard to imagine a scenario where the caregiver has 100% control over his or her hours, wages and working conditions.  If you are working one day as an employee, and the next day as an independent contractor without any other changes, chances are you are really an employee.

    Q: I run the domestic worker placement agency.  Do I have to comply with the new overtime laws?

    A: Not if meet the definition of a domestic work employment agency under Civil Code section 1812.5095.  See my article to see if you meet all of the requirements.

    Q: Which hours are counted toward the weekly overtime?  I work 12 hours a day, 5 days a week.  By the 4th day I’ve worked 45 hours.  Does that mean that the 5th day is all overtime?

    A: The Domestic Workers Bill of Rights uses the same, or substantially similar, language as other overtime statutes in defining which hours require overtime payments.  Cases interpreting those statutes make it clear you only count the regular hours worked towards the weekly overtime.  In other words, you only count the first 9 hours worked toward the weekly 45-hour maximum.  You don’t count the daily overtime hours toward the weekly maximum because the employer already paid overtime for the hours in excess of 9 per day.

    The following examples may help.

    Correct!

    M T W T F Total
    Total 12 12 12 12 12 60
    Reg Hrs 9 9 9 9 9 45
    OT Hrs 3 3 3 3 3 15

    Wrong!

    M T W T F Total
    Total 12 12 12 12 12 60
    Reg Hrs 9 9 9 9 0 36
    OT Hrs 3 3 3 3 12 24

    Hopefully, these answers help. Each situation is unique.  The questions and answers provided above are for general information purposes only. If you have questions or concerns about your particular situation, contact an employment attorney familiar with wage and hour issues in the eldercare industry.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog. Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Obama Directs DOL to Expand FLSA to Cover In-Home Care Workers

    “President Obama announces a new rule that will ensure in-home care workers are included in the same minimum wage and overtime protections afforded to other workers under the Fair Labor Standards Act.”

    Last year the California legislature failed to pass legislation that would have added substantial burdens to families hiring home workers, including personal attendants or other in-home care providers.  President Obama is taking credit for newly proposed Department of Labor regulations modifying overtime and minimum wage requirements for in-home care workers.  The DOL previously attempted to make similar changes in 1993 and again in 2001, but those rules never became formalized.

    A copy of the currently proposed regulations can be downloaded here. To save you the time of having to read the 186-page document, I’ve summarized the proposed changes below.  The new regulations would not take affect until after the public is allowed the opportunity to comment on the proposed changes.

    Current regulations provide an exemption from the FLSA for in-home companions.  Like babysitters, the in-home companions care for the elderly or infirm and are typically employed by the household or family as opposed to a third-party employer.  There are a number of regulations defining what a “companion” can or cannot do and still remain exempt from the overtime and minimum wage obligations of the FLSA.  The new regulations make it clear that a companion is someone who provides fellowship and protection, but does not perform general household work.  The legislative history uses the example of a neighbor who comes over to help with grandma or grandpa.

    Under the new regulations, an exempt companion can:

    • Occasionally help the elderly person get dressed or undressed, but this cannot be a part of the regular duties.
    • Occasionally assist the elderly person with grooming including combing and brushing hair, assistance with brushing teeth, applying deodorant or washing face/hands following a meal.
    • Assist the elderly person with using the toilet or changing diapers.
    • Occasionally driver the elderly person to appointments, but this cannot be a part of the regular duties (the regulations suggest the companion should typically accompany the elderly person using a taxi or public transportation).
    • Cook meals so long as the meals are going to be eaten by the elderly person while the companion is there (e.g., no more preparing a week of meals at a time) and is not to be eaten by other members of the household.
    • Do some “light laundry” for the elderly person (but not for others), which can include putting clothes in the washer or dryer and assisting the elderly person with putting away or folding the clothes.
    • Occasionally assisting with bathing, but this cannot be a part of the regular duties.
    • Provide reminders of medical appointments or a predetermined medicinal schedule (e.g., provide pills out of a presorted pill box)

    Under the new regulations a companion cannot:

    • Do household chores for the benefit of other household members.
    • Vacuum, wash windows, dust or other similar “housekeeping” chores.
    • Provide medical care such as changing bandages, taking vital signs, evaluating health or other diagnostic or medically-related tasks (pulse, blood sugar, respiration, temperature) – The DOL is requesting comments on whether companions should be allowed to apply band-aids.
    • Determine whether prescription medications need to be taken.

    The new regulations make it clear that third-party employers (e.g., agencies) cannot take advantage of the exemption.  Even if the if agency is a joint employer with the family/household member, the employee must received federal minimum wage and overtime.  The definition of what constitutes family or household member for the purposes of determining the employer includes “an individual who is a child, niece, guardian or authorized representative, housemate, or person acting in loco parentis to the elderly or infirm individual needing companionship or live-in services.”

    The new regulations also change the record-keeping requires for live-in domestic workers.  Currently employers can avoid formal pay records for domestic live-in domestic workers if the parties have an agreement setting forth the agreed upon work hours with notifications for any deviations from the standard hours.  The DOL has determined that such lax record-keeping is no longer sufficient, and that even live-in domestic workers will be required to turn in accurate records of the actual hours worked, and employers are required to maintain those records as specified in the Act.  It is my understanding that companions employed by the family/household, regardless of whether they are live-in companions or not, will not have to keep records of hours worked, but that is not entirely clear.  Companions employed by third-parties will have to keep accurate records of hours worked.

    If you are interested in submitting your comments to the DOL regarding the proposed changes, you will eventually be able to log onto http://www.regulations.gov and search for RIN 12350AA05.  When I searched for it today, it was not available, likely because the regulations are not yet ready for public comment.

    If you or someone you know uses, employs or works with companions or other domestic workers, familiarize yourself with the proposed regulations and submit your comments.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.