Personal Attendants Vs Companions: Definitions and Exemptions

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California’s Industrial Welfare Fee Wage Order 15 9Effective April 1, 1986) defines “private attendant” to incorporate babysitters and any particular person employed instantly by a non-public householder or not directly by way of a third-party employer to oversee, feed, or gown a toddler or one who by purpose of superior age, bodily incapacity, or psychological deficiency wants supervision.

It offers an exemption to over-time pay, meal interval, relaxation interval, and record-keeping necessities for people who qualify as private attendant, besides minimal wage.

Different Work Not Exceed 20% of Work time:

However to retain the exemption, a quantity of “different work”, which means no more than 20 p.c of the worker’s work time. Housekeeping chores are thought-about “different work” counted in opposition to the 20 p.c limitation.

Normally family work exceeds 20 p.c of the full weekly hours labored, the exemptions is misplaced.

Thus, in Cardenas v. Mission Industries, 226 Cal.App. third 952, 277 Cal. Rptr. 247 (1991), the court docket affirmed the choice {that a} line-in employee didn’t qualify as a private attendant as a result of the worker did substantial quantity of labor unrelated to the care of kids, to wit: grocery buying, doing laundry, working errands, making ready dinner for complete family.

However private attendants topic to Wage Order 5 (Public housekeeping trade) and never Wage Order 15 (family occupations) may go extra hours in an emergency however have to be paid time and one-half for extra hours.

Stay-In Workers Pay:

Part 3 (A) AND (B) of Wage Order 15 entitles live-in staff to time and one-half for the primary 9 (9) hours labored on a sixth or seventh day double time for hours in extra of 9 on such days.

However live-in home staff have full additional time exemption below Part 13(b)(21) of the Federal Truthful Labor Requirements Act, and partial additional time exemption in Wage Order 15.

And family home employees who obtain board and boding could also be paid as soon as a month on day designated prematurely by the employer, per California Labor Code Part 205.

Who Are Not Private Attendants:

The California Division of Labor Requirements Enforcement (D.L.S.E.) has said that licensed vocational nurses (LVN) and employees who frequently give treatment or take temperatures pulses, or respiratory charges don’t usually qualify as private attendants.

However remoted help with treatment has been interpreted as included in “supervision” work by a private attendant.

Furthermore, the exemption doesn’t apply if service are carried out by educated personnel comparable to a registered or sensible nurse, however a licensed nursing assistant (CNA) shouldn’t be thought-about a educated private, per Ninth Circuit in McCune v. Oregon Senior Companies Division, 894 F.2nd 1107, 1111 (ninth Cir. 1990).

Lastly, the exemption doesn’t apply to providers not carried out in a non-public dwelling, nor relevant to the care of minor kids who usually are not mentally or bodily infirm.

Sleeping Time Compensation:

A live-in worker shouldn’t be thought-about to be working when she or he is free of all duties and will depart the premises for his private functions, together with durations when she or he eats, sleeps, entertain. These usually are not home labored.

So, employers and staff are inspired to agree on affordable association below Wage Order 5 (public housekeeping trade), however not below Wage Order 15.

However California’s Wage and Hours Division Considers all sleeping time as hours labored, if an worker is required to be on obligation for lower than 24 consecutive hours.

If an worker is required to be on obligation for twenty-four hours or extra consecutive hours, the worker and employers might comply with exclude from hours labored a sleeping interval of no more than eight hours, in addition to exclude meal interval from hours labored

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Source by Roman Mosqueda, S. J.D.