Sacramento, CAAlthough it was a long time coming, overtime pay laws in California now extend to people who are employed as personal attendants. Unfortunately, because these California overtime laws are so recent, some employers may not realize they now owe personal attendants overtime pay, or they may realize it but willfully break the law. In any case, as of January 1, 2014, personal attendants are eligible for paid overtime.
Under California’s Domestic Worker Bill of Rights (AB 241), people employed as personal attendants are eligible for overtime pay, which they were not before. The Act defines personal attendants as people employed to work in a private household, “to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision.” People who spend more than 20 percent of their time in other duties are not considered personal attendants. Personal attendants can be either live in or live out and include nannies, babysitters and certain caregivers.
People who work in facilities are not included. Also not included are family members of the employer or casual babysitters.
The Domestic Worker Bill of Rights requires personal attendants who work more than nine hours in a workday or 45 hours in a workweek to be paid one-and-one half times their regular rate of pay for any time above nine hours per day or 45 hours per week. Personal attendants are also entitled to minimum wage pay.
This means that someone who works as a personal attendant for an elderly person and spends 10 hours a day working should be given overtime pay for one hour that day.
Prior to the Domestic Worker Bill of Rights, employers would rely on the personal attendant exemption to avoid paying their domestic workers - which included caregivers, housecleaners, housekeepers and childcare providers - with overtime pay. Now, if personal attendants are not given their overtime, they can file a lawsuit to recover unpaid wages, reasonable attorneys fees and interest and penalties.
The distinction between personal attendant and domestic worker is important because there are different overtime rules governing the two groups. California Domestic Workers Coalition notes that while overtime for personal attendants kicks in at nine hours in a day or 45 in a week, overtime for live-out domestic workers who are not personal attendants kicks in at eight hours in a day or the first eight hours on the seventh consecutive day. Double overtime starts for live-out domestic workers at 12 hours in a day or more than eight hours on the seventh consecutive week.
Live-in domestic workers have different overtime rules as well, including time-and-a-half for more than nine hours in a day and for the first nine hours on the sixth and seventh consecutive days, and double time for more than nine hours on the sixth or seventh consecutive days.
Despite having a right to overtime, personal attendants do not have a right to meal or rest breaks.
Although the Domestic Worker Bill of Rights is law, it is only a temporary law and ends in 2017 if the legislature does not extend it.
Failure to pay domestic workers and/or personal attendants for their overtime hours can result in a lawsuit being filed against the employer.