Many families hire workers at their home to provide a variety of services from housecleaning, cooking, child care, as well as elderly care. However, most families are unaware that the same or similar wage and hour laws that apply at places of business also apply to the people who work for them at home. In fact, we have seen an alarming trend of high exposure (Several Hundred Thousand Dollars) domestic worker claims in recent years. Consequently, it is critical that household employers are in compliance with all applicable wage and hour requirements to avoid their exposure to these wage and hour claims.

Background

For years families hired household workers as independent contractors, and paid them under the table and under the radar of normal wage and hour requirements. Rarely would one of these workers make a claim for unpaid wages and if they did they often would not prevail. However, that all changed beginning in 2014, when the Domestic Workers Bill of Rights (“DWBR”) was enacted in California, which codified wage and hour rights of household workers, entitling them to the same or similar pay and workplace rights that office workers enjoyed. These rights include minimum wage, overtime, meal and rest periods and paystub requirements. Layered over the DWBR are the laws and requirements set forth under AB 5 which causes most workers to be classified as employees and not independent contractors. As a result of both the DWBR and AB 5, it is more critical than ever for households to ensure that they have correctly classified their domestic workers and comply with all applicable wage and hour requirements.

The Basics

Under the DWBR, and the applicable California Wage Order No. 15, a domestic worker is someone who provides services related to the care of people in the home. Domestic workers include nannies, childcare providers, caregivers and personal attendants, housekeepers, cooks and other household workers. California Wage Order No. 15  distinguishes certain domestic workers “personal attendants” from other domestic workers. A “personal attendant” is someone who spends more than 20 percent of their time performing work involving the supervision, feeding and dressing of a child or person who needs supervision. Significantly, family members and occasional baby sitters are expressly excluded by the DWBR. The key wage and hour requirements for all domestic workers covered under the DWBR is as follows:

Minimum Wage  All domestic workers are entitled to the same minimum wage as other workers in the state of California, or municipalities (currently $13.00 per hour in California and $14.25 per hour in the City of Los Angeles).

Hours and Days of Work  A live-in domestic worker who is required to sleep over must have at least 12 consecutive hours of duty-free time each work day. Additionally, live-in workers cannot work more than 5 days a week without a day off, except under limited specified emergency circumstances.

Overtime  Personal attendants are entitled to overtime for work hours performed over 9 hours in a day or 45 hours in a week.

Live-in workers, regardless of whether they are a personal attendant or not, are entitled to overtime for work over 9 hours in day, and for the first 9 hours worked on the sixth and seventh consecutive days of the work week. Double time applies for hours worked over nine hours on the sixth and seventh consecutive day of the workweek. Live-in workers are entitled to overtime for work over 12 hours in a day, and the double-overtime rate is required.

Other domestic workers who do not live in the home are entitled to overtime for work over 8 hours in a day or 40 in a work week. They are also entitled to receive overtime pay for the first eight hours worked on the seventh consecutive day of the work week. Double time is required for work over 12 hours in a day or over eight hours on the seventh consecutive day of the work week.

Meal and Rest Periods  Unlike personal attendants, who are not provided meal and rest periods under the DWBR, all other domestic workers must receive 10-minute uninterrupted rest breaks for every four hours worked. Additionally, non-personal attendant/domestic workers are entitled to a 30-minute paid or unpaid meal break if they work more than 5 hours in any work day. The meal break must be paid if the employee is not permitted to leave the home or is otherwise is not relieved of their duties during the meal period.

Paid Sick Leave  Domestic workers are entitled to at least 24 hours of paid sick leave in a year in California. Even greater sick leave is required in the City of Los Angeles (up to 6 days) and possibly other municipalities or unincorporated areas of Los Angeles or other counties.

Pay stubs  Domestic workers must be provided a paystub with their paychecks, which sets forth specific information including but not limited to the number of hours worked, the rate(s) of pay, including overtime, and any and all state and federal withholdings/deductions.

Important Considerations when employing domestic workers

On-Call Hours If a domestic worker is required to sleep at the home of the employer/family, and/or is required to address any urgent issues after work hours or in the middle of the night, even if it never actually occurs, then they are entitled to be paid for this “on call” time, even when they are sleeping. Although this after hours and sleeping “on call” time can be paid at a lower rate, a worker must be paid an overtime rate if the combined total work hours in the day exceeds 8 hours, or 9 hours for live in or personal attendants, based upon the average hourly regular rate for the full day.

Potential persons who are deemed employers  Anyone who controls the conditions of employment will be deemed an employer or joint employer of a domestic worker. Consequently, if a personal attendant is employed at an elderly parent’s home and paid by the parent and is mostly directed by the elderly person, an adult child who helps administer the schedule and conditions and/or provides some instructions to the domestic worker, could also be deemed a joint employer and face the same risk that the primary employer (elderly person) faces.

Using an Agency in hiring domestic workers  Many families retain the services of an agency to hire and retain a domestic worker. However, be aware that even if the agency handles payment of all wages made to the domestic worker, and agrees to handle all wage and hour obligations, if the family controls the work of the domestic worker, which is very common, then the family will be deemed a joint employer of the employee and liable for all the same wage and hour obligations outlined above. As such, it’s critical that the agency used is licensed, bonded and that proof of insurance is provided to the family. Also, a family should not rely upon the representations of the agency regarding how the employee is paid and should have an attorney knowledgeable about domestic worker employment laws review the agency agreement to ensure that the domestic worker is paid in compliance with applicable laws.

Rent credit for domestic workers who live in the home  The applicable wage order for domestic worker permits a meal and lodging credit which may be applied against minimum wages paid to a domestic worker. Currently, the rental credit is limited to $61.13 per week. The permissible combined meal credit is currently $19.85 daily if breakfast, lunch and dinner are provided. However, for any meal and/or lodging credit to be enforceable, it must be in the form of a written agreement executed by the worker in advance of applying the credit. Note that if the domestic worker would still be paid at least minimum wage for all time worked, after a rent credit and/or meal credit is applied, then a higher meal and lodging credit can be applied to the wages.

Workers Compensation or other insurance  Although a home owner’s policy can cover workers compensation requirements, you should consult with an insurance specialist to confirm that such coverage is in place should the domestic worker claim they were injured while working.

What to do

Before hiring or proceeding further with the use of domestic workers, consult with an attorney about your obligations, including providing you with an employment agreement covering the work and wages of a domestic worker. Please contact Scott Liner at [email protected] or call Chase Law Group at 310.545.7700.