Caregiver Versus Personal Attendant – Wages and Benefits

Are you a caregiver or a personal attendant who works in a private household or home? As a household worker either as a caregiver or personal attendant, are you entitled to minimum wage? Over-time pay? Other benefits?

If hired directly by an individual or family, your benefits are different from one who is hired by a private firm or agency and governed by general employment laws: applicable federal and state statutes.

A live-in employee as opposed to a live-out employee is subject to special work rules discussed below.

A caregiver or “care custodian” is defined by Section 15610.17 of the California Welfare and Institutions Code as:

“… an administrator or an employee of…public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff.”

A “personal attendant” is not entitled to overtime compensation, unless: (1.) he or she is a live-in employee; or (2.) he or she does general household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or (3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.

In these three instances, the household worker is no longer considered a “personal attendant” and is entitled to overtime pay. Otherwise, light house keeping and cooking chores qualify as work exempt from overtime compensation.

Personal Attendant As Defined In CA IWC Wage Order 15:

Section 2(J) of the California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 defines “personal attendant” as follows:

“‘Personal attendant’ includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care 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 ‘personal attendant’ shall apply when no significant amount of work other than the foregoing is required.”

Indeed, the California Division of Labor Standards Enforcement (DLSE) has historically adopted the standard used in the federal regulations, 29 C.F.R. 552.6 on “companionship services,” to wit:

“…(T)he term ‘companionship services’ shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked.”

Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:

“The term ‘companionship services’ does not include services related to the care and protection of the aged or infirm that require and are performed by trained personnel, such as registered or practical nurse.”

Thus, the …