- Important Rules for Employing Household Employees
- January 2, 2017 | Authors: Katherine A. Hren; Richard S. Rosenberg
- Law Firm: Ballard Rosenberg Golper & Savitt LLP - Glendale Office
In recent years, California courts have seen a tremendous increase in employment litigation filed by individuals performing work in a person's home. Whether the individual is a nanny for young children, a housekeeper, or a caregiver, all of these individuals nevertheless are considered "employees" entitled to legal protections.
Most household employers utilize a very informal approach when employing these individuals and ignore the legal requirements. Practices that run afoul of the law include such things as paying employees in cash without providing an itemized statement , paying a daily or weekly rate without applicable overtime pay, not keeping track of actual hours worked or other required employment recordkeeping, not providing and tracking legally required rest and meal breaks, and not paying for all hours worked. Doing any of these things could land homeowners in a world of legal hurt that can be very expensive and time consuming to resolve.
Homeowners who employ domestic workers need to understand how the employment laws apply and what they must and must not do. The following FAQ summarizes some of the most important aspects of employing a domestic worker and a recent law signed by the Governor which extends overtime protections to these workers.
Q: What Does the New Law Say?
A: In September 2013, the Governor signed into law the Domestic Worker Bill of Rights, which extends overtime protections to certain domestic workers. That law contained a provision indicating that these overtime protections would expire on January 1, 2017. However, last month, the 2016 Domestic Workers Bill of Rights was enacted to make these protections a permanent part of the law.
Q: How Much Do I need to Pay a Domestic Worker?
A: All domestic workers are entitled to minimum wage. The only exceptions are babysitters under the age of 18 and the employer's parent, spouse or child. Currently, the state minimum wage is $10.00/hour. However, many cities have a higher minimum wage. In the City of Los Angeles, the minimum wage is $10.50.
Q:Do I have to Pay Overtime to a Domestic Worker?
A: Yes. All domestic workers are entitled to receive overtime pay. Determining when a domestic worker is entitled to overtime depends upon whether the individual qualifies as a "personal attendant".
Q: Who is a Personal Attendant?
A: A personal attendant is someone employed by a private householder or any third party employer recognized in the health care industry to work in a private household. Duties of a personal attendant include supervising, feeding, and dressing a child or person who needs assistance due to advanced age, physical disability, or mental deficiency. This definition includes nannies and caregivers. However, if someone hired as a personal attendant spends more than 20 percent of his or her time performing work other than supervising, feeding, and dressing the person to be cared for (such as on housekeeping tasks) then he or she is not considered a personal attendant.
Q: When Do I have to Pay Overtime to a Personal Attendant?
A: Personal Attendants must be paid 1.5 x the regular rate of pay for work over 9 hours in a day and 1.5 x the regular rate of pay for work over 45 hours in a work week.
Certain categories of personal attendants are excluded from overtime protections, including personal attendants who provide domestic services through the In Home Support Service (IHSS) program; personal attendants who provide domestic services through Department of Developmental Services pursuant to the Lanterman Developmental Disability Services Act (DDS); casual babysitters; babysitters under age of 18; and close family members such as parent, grandparent, spouse, sibling, child.
Q: When Do I have to Pay Overtime to Domestic Workers Who Don't Qualify As Personal Attendants?
A: It depends upon whether the domestic worker lives in or outside the house:
Live-out domestic workers who are not personal attendants are entitled to:
1.5 x regular rate of pay for work over 8 hours in a day or 40 hours in a week
1.5 x regular rate of pay for the first 8 hours on the 7th consecutive day
2.0 x regular rate of pay for work over 12 hours in a day
2.0 x regular rate of pay for work of over 8 hours on the 7th consecutive day
Live-in domestic workers who are not personal attendants are entitled to:
3 hours off in a 24 hour workday (it can be non-consecutive);
12 consecutive hours off in any 24 hour workday;
24 consecutive hours off for every 5 days of work.
1.5 x regular rate of pay for work over 9 hours in a day;
1.5 x regular rate of pay for the first 9 hours of work on the 6th and 7th consecutive day;
2.0 x regular rate of pay for more than 9 hours on the 6th or 7th consecutive day.
Q: Are Domestic Workers Entitled to Meal Breaks?
A: Yes. All domestic workers, except personal attendants, are entitled to meal periods. Employees who work shifts in excess of five (5) hours, are required to take a thirty (30) minute duty-free unpaid meal period. The meal period must start before completion of the fifth hour of work. However, if the work day does not exceed six (6) hours, the employee may elect to waive the meal period provided the employee has signed a meal period waiver.
Employees who work shifts in excess of ten (10) hours, are required to take a second thirty (30) minute duty-free unpaid meal period. The second meal period must be taken before completion of the 10th hour of work. If the work day does not exceed twelve (12) hours, the employee may elect to waive the second meal period if the employee has taken the first meal period and the employee has signed a meal period waiver.
Additionally, employers are required to maintain written time records showing the start and stop time of each meal period.
Q: Are Domestic Workers Entitled to Rest Breaks?
A: Yes. All domestic workers, except personal attendants, are entitled to rest periods. A ten (10) minute rest period is permitted during each four (4) hour period worked or major fraction thereof. This means that if an employee works between 3½ and 6 hours, the employee is entitled to one 10-minute rest break. If an employee works more than 6 hours, the employee is entitled to a second paid 10-minute rest break. If the employee works more than 10 hours, the employee is entitled to a third 10-minute rest break.
Q: What if I provide Meals and Lodging to a Domestic Worker?
A: An employer who provides meals and/or lodging to an employee may credit part of the cost of those meals and/or lodging against the minimum wages earned by the employee. However, there are certain limits to the amounts that may be credited, and in order to take advantage of the credit, there must be an agreement in writing with the employee that satisfies certain legal requirements.
Q: Do I need to Maintain Time Records?
A: Yes. The homeowner must keep contemporaneous written records showing the actual clock hours worked by a domestic worker, which means actual start and stop times, as well as start and stop times of each meal period.
Q: Can I pay the Domestic Worker in Cash or Check?
A: Yes, but regardless of the method of payment, the employee must be provided with a detachable part of the check or a separate writing showing certain information, and the employer must make the proper deductions.
Specifically, the employer is required to provide the following information on the itemized statement:
- Gross wages earned
- Total hours worked (not required for salaried exempt employees)
- The number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece rate basis
- All deductions (all deductions made on written orders of the employee may be aggregated and shown as one item)
- Net wages earned
- The inclusive dates of the period for which the employee is paid
- The name of the employee and the last four digits of his or her social security number or an employee identification number other than a social security number
- The name and address of the legal entity that is the employer
- All applicable hourly rates in effect during the pay period, and the corresponding number of hours worked at each hourly rate by the employee.