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Overtime For In-Home Caretakers Who Perform Health Care Services?

California law does not require that personal attendants be paid overtime wages if they are employed as an in-home caretaker to feed, dress and otherwise supervise an elderly person. Nurses, however, who are employed to perform nursing duties in an elderly person's home are entitled to overtime pay.

The gray area, recently addressed by the California Court of Appeal for the Fourth Appellate District, is whether a caretaker who is not a nurse but performs nurse-like functions is entitled to overtime pay.

Joy Cash was hired as an in-home caretaker for Iola Winn, then 94-years-old, in 2005 and paid $10/hour. Cash reported working an average of 18 hours a day, every day, from 11:30 am to 6am the following day. She was not paid overtime for the hours worked in excess of 8/day and 40/week and filed an overtime lawsuit against Winn claiming a violation of California wage and hour laws.

Cash testified that she regularly performed health-care-related activities, such as checking Winn's pulse, administering medication, checking her blood sugar to monitor Winn's diabetes and other tasks. Although a jury found that Cash should be paid overtime, the appellate court did not agree, holding that the majority of Cash's work consisted of personal attendant duties. Cash did not perform enough health-care-related work to fall under the overtime pay requirements.

"An in-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," noted the court.

Based on the court's recent decision, a person employed as a personal attendant for an elderly individual who does not spend more than 20 percent of his or her time doing performing work in addition to feeding, dressing and supervising, may not eligible for overtime pay, even if some health-care-related functions are performed.

Source: "Cash v. Winn," May 14, 2012

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