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?
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:
- The employee regularly receives at least 5 hours of uninterrupted sleep;
- The employee is provided a comfortable place to sleep;
- The employer and employee agree (preferably in writing) that the sleep time is not compensable; and
- 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.
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.
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
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.
11/17/2010 Update: The California Supreme Court granted review of Kirby v. Immoos Fire Protection. We will have to wait for the Supreme Court’s decision to determine if I was correct.
In 2000, the California legislature added some teeth to California’s meal and rest break laws. Prior to 2000 employers were required to give employees meal and rest breaks, but there was no penalty if the employer refused to allow employees to take their legally mandated breaks. In 2000 the legislature enacted California Labor Code Section 226.7 which requires employers to pay an additional hour’s pay for each day in which a meal and/or rest break is not provided.
The California Supreme Court later decided that the additional hour’s pay is a “wage” and not a “penalty.” See Murphy v. Kenneth Cole. Since that time we have since a proliferation of suits alleging a violation of Labor Code Section 226.7. If court filings are to be believed there is hardly an employee in California that is allowed to take the required meal and rest breaks. I rarely see an overtime case filed that does not include a missed meal and/or rest break claim.
When the court first decided Murphy I recall thinking about how it would affect the attorneys’ fees provisions in the Labor Code. Under Labor Code Section 1194 the prevailing employee is entitled to recover his/her attorneys’ fees in an action for unpaid minimum wage or overtime. The employer can never recover its attorneys’ fees in an unpaid minimum wage or overtime case. Labor Code Section 218.5, however, allows the “prevailing party” to recover attorneys’ fees in any action for nonpayment of wages other than minimum wages or overtime.
Based on Murphy and the language of Labor Code Sections 218.5 and 1194, I theorized that an employer that successfully defeats a claims for unpaid meal and/or rest breaks would be entitled to recover its attorneys’ fees. In the common unpaid overtime case where the employee “throws in” a claim for missed meals/rest breaks I believe the employee is at risk of having to pay a portion of the employer’s attorneys’ fees even if the employee prevails on the unpaid overtime claim unless the employee also prevails on the missed meal/rest break claim.
Well, the Third Appellate District agrees. In Kirby v. Immoos Fire Protection (10 C.D.O.S. 9451), the court came to the same conclusion I did: because a claim for missed meal/rest breaks is a claim for “wages” other than minimum wage and overtime, an employee who does not prevail on those claims is liable for the employer’s attorneys’ fees incurred in defending against those claims.
Attorneys representing employees in unpaid overtime and minimum wage cases need to carefully consider whether to include the unpaid meal/rest break claim. Considering the fact that employers are not required to force employees to take rest breaks (whether this is true with regard to meal breaks remains to be seen) or to track the rest breaks (which is not the true with regard to meal breaks) means prevailing on a rest break case may be difficult. Good attorneys will carefully interview their clients, and hopefully other percipient witnesses, before deciding to add the rest/meal breaks claim as a matter of course.
Employers should not treat this as a license to violate the law. To the contrary. Although you may be able to offset a judgment against you by the amount awarded to you in attorneys’ fees, actually collecting an award of attorneys’ fees is usually problematic at best. The best policy is to know the law, follow the law, and ensure you have accurate records reflecting what occurred. But you already knew that!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.
- Wrongful Termination
- Employment Law
- Workplace Retaliation
- Religious Discrimination
- workplace Discrimination
- Labor Law
- employer attorney
- Workplace Harassment
- Sexual harassment
- Wage & Hour
- Interns, Sexual Harassment and the Law – Phillip J. Griego
- New Laws
- Medical Leaves of Absence
- Policies & Best Practices
- Harassment or Retaliation
- Independent Contractors
- Sick Leave
- Age Discrimination
- Attorney Client Relationship
- Elder Care
- Employment Lawyer
- labor discrimination
- mileage reimbursement