If you hire someone to care for your loved one in his or her home, there are several California laws you need to consider. Some individuals enter into informal agreements with caregivers to pay the caregiver a combination of money and housing and/or meals. Your agreement with a caregiver will be upheld only if it complies with the wage and hour laws of California. Here are some traps and tips to consider if you are hiring a caregiver to work in a private home.
- Have a written agreement with the caregiver to define terms of employment, including duties and compensation.
- Make sure the employment arrangement is “at will,” meaning the caregiver can resign or be released from employment at any time, with or without cause or advance notice.
- Pay the caregiver minimum wage for all hours worked. The term “hours worked” is defined by law as when the caregiver is “suffered or permitted to work” and generally means all time the caregiver is on duty.
- Keep track of the hours worked by the caregiver. You are probably required to pay overtime to the caregiver, unless the caregiver qualifies as a “personal attendant” under the California Wage Orders.
- Make sure your agreement states that a live in caregiver will vacate the premises promptly when employment ends.
- Believing you can pay the caregiver whatever you agree to, even if it is less than minimum wage. Most claims filed with the Labor Commissioner by caregivers seek payment of minimum wage and overtime for hours worked.
- Counting the market value of housing and/or meals in calculating compensation. The California Wage orders define the value of housing and meals provided to a caregiver, and it is significantly below market value. For example, under current law, if you provide a guest house to a caregiver, you may apply a maximum of $451.89 per month to your obligation to pay minimum wage to the caregiver.
- Failing to keep accurate records of hours worked and time off. You will have a difficult time defending an overtime claim if you do not have time records.
- Calling the caregiver an “independent contractor” to avoid the overtime and minimum wage obligations imposed by the Wage Orders, and to avoid paying payroll taxes. Because you will want to retain control over how the caregiver accomplishes his or her work, it is unlikely that a caregiver could be properly classified as an independent contractor, even if you have a written agreement stating that the caregiver is an independent contractor.
- Failing to clearly state that the caregiver’s right to reside on the property is conditioned on the caregiver’s employment. You do not want to have to go through an unlawful detainer proceeding to evict a caregiver who you have released from employment.
For more information on caregiver agreements and employment related issues, contact Sara Boyns or any member of the Fenton & Keller employment law attorneys.
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