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EmploymentUpdates and News

August 2012

Personal Attendants Who Are Exempt From Overtime Pay Do Not Become Non-Exempt by Performing Healthcare Related Services

By Amanda F. Benedict, Esq.

Under California law, an employee must be compensated at overtime rates if he or she works in excess of eight hours per day or in excess of 40 hours per week (California Labor Code section 510(a)). However, persons employed as "personal attendants" are exempt from the overtime pay requirements. (Industrial Welfare Commission (IWC) Wage Order No. 15-2001, §§1(B), 2(J), codified at California Code of Regulations, Title 8, section 11150). Section 11150 defines a "personal attendant" as:

[a]ny person employed by a private house holder or by any third party employer recognized in the healthcare 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 status of the ‘personal attendant’ shall apply when no significant amount of work, other than the foregoing is required.

There are two exceptions to the "personal attendant" exemption. A "personal attendant" is not exempt if: 1) the in home personal attendant performs a significant amount of work (more than 20% of weekly work time) in addition to the personal attendant services, or 2) the personal attendant is a registered nurse who engages in the practice of nursing in the home.

In Cash v. Winn (2012) 205 Cal.App.4th 1285, the court was asked to examine whether a third exception to the personal attendant exemption exists for a personal attendant who is not a licensed nurse, but who performs health care related services for an elderly client. The employee, Cash, was hired to serve as the personal assistant to an elderly woman. Cash, who was not a registered nurse, also performed some health care services for the elderly client. When Cash left her employment she sued the employer, Winn, for overtime wages. Cash argued that because she provided health care services to the elderly client, the overtime exemption for personal attendants no longer applied.

At trial, the judge instructed the jury that the personal exemption does not apply when: 1) the employee performs significant other work duties constituting greater than 20% of the weekly work time, or 2) the employee’s duties require the regular administration of healthcare services such as the taking of temperatures, pulse or respiratory rate, regardless of the amount of time such duties take. The jury found Cash was employed to supervise, feed, or dress Winn, and that Cash’s other work duties did not constitute greater than 20% of her work time. However, the jury also found that Cash’s work involved "the regular administration of healthcare services" under the definition given by the court. Based on these findings, Cash was awarded overtime wages, interest, costs and statutory attorney’s fees.

On review, the Fourth District Court of Appeal, Division One, held that a personal attendant who engages in "regular administration of health care services," but who is not a trained health care provider, does not fall outside the personal attendant exemption rule, and therefore is not entitled to overtime wages. The appellate court framed the issue as whether a person, who is not a licensed nurse of any type, and whose work is primarily that of a personal attendant, loses his or her status as a personal attendant because the employee regularly performs healthcare related services even if the employee spends more than 80% of his or her time supervising, feeding or dressing the elderly individual. The appellate court concluded that the answer to that question is "no", noting that, "[i]n-home caretaker's work providing assistance to elderly individuals who cannot care for themselves will almost always involve some form of health care related function." (At p. 1300.) Accordingly, if the court were to recognize an exception to the personal attendant exemption for a caregiver who regularly provides any health care related tasks, then the personal attendant exemption would effectively be eliminated with respect to care for elderly persons.

The position adopted by the Court of Appeal in Cash, is consistent with similar overtime pay exemptions under federal law for "companionship services" (29 U.S.C.§ 213(a)(15)) that only provide an exception to the overtime pay exemption when the health care services required are provided by trained personnel, such as a registered or practical nurse. (29 C.F.R. § 552.6.)


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The opinions expressed in this employment update are general in nature, and are not meant to provide specific legal advice. For more information, please contact a Klinedinst attorney. No attorney/client privilege is created or assumed by reading this newsletter.








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