Personal Attendant or Employee?
Chris Panetta, Attorney at Law
Fenton & Keller
People with older parents often hire caretakers, or “personal attendants,” to provide home-based care for their parents. Though many people hire personal attendants as “independent contractors,” in general the law considers personal attendants employees rather than independent contractors. This means that when hiring a personal attendant, it is important to understand applicable wage and hour laws and ensure that standard deductions are made from the personal attendant’s paycheck.
Personal attendants must be paid the minimum wage, (which is currently $8.00 an hour), but are otherwise exempt from most wage and hour laws, including laws requiring the payment of overtime. A personal attendant can therefore work more than eight hours in a workday, or more than 40 hours in a workweek, and need not be paid overtime wages. Furthermore, rules requiring meal or rest periods are inapplicable to personal attendants and an employer cannot be penalized for failing to provide meal or rest periods to a personal attendant.
But to fall within the scope of the personal attendant exemption, the personal attendant must spend the vast majority of his or her time performing “personal attendant” duties. Those duties are similar to the duties of a babysitter and include “supervising, feeding, or dressing” a person who by reason of advanced age or physical or mental deficiency needs supervision. The California Labor Commissioner has indicated that personal attendant duties are strictly limited to “supervising, feeding, or dressing” and do not include cooking, cleaning, laundering, shopping, or any other duties outside of supervising, feeding or dressing. A personal attendant may dedicate some time to performing non-personal attendant duties, but if the personal attendant spends more than 20 percent of his or her time performing non-personal attendant duties, the exemption is lost and overtime must be paid.
Additionally, the personal attendant exemption will be lost if the personal attendant engages in nursing activities on a regular basis. According to the Labor Commissioner, a household employee who regularly provides medications, takes temperatures, or measures blood pressure, regardless of the amount of time spent performing such duties, will be considered a nurse rather than a personal attendant and must be paid overtime.
The personal attendant exemption represents a significant exception to the general rule that non-management employees must receive overtime wages and makes it less costly to obtain home-based care for disabled family members. But to receive the benefits of the personal attendant exemption, great care must be taken to ensure that the duties of the personal attendant remain those of a personal attendant rather than those of a cook, housecleaner, or nurse.
Additional information regarding personal attendants may be obtained from the California Division of Labor Standards and Enforcement website located at www.dir.ca.gov/dlse.
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