CAHSAH® 2016 Annual Conference & Home Care Expo

CAHSAH® 2016 Annual Conference & Home Care Expo

1 2016 California Association for Health Services at Home

Reduce Risk of Liability for Commonly

Challenged Compensation Practices

Angelo Spinola

JoAnna Brooks

Littler Mendelson, PC



Legal NoticeThe materials and opinions presented by the speakers at this presentation represent the speakers’ views, are for educational and informational purposes only, are not intended to be legal advice and should not be used for legal guidance or to resolve specific legal problems. In all cases, legal advice applicable to your organization’s own specific circumstances should be sought.We strongly encourage you to consult legal counsel of your choice on specific matters involving employment law, and important personnel policies and practices prior to adoption or implementation.

California Wage & Hour Law



Wage Theft Protection Act

The Wage Theft Protection Act went into effect on January 1, 2012.• The act requires that all employers provide

each employee with a written notice containing specified information at the time of hire.

• The notice must be in the language the employer normally uses to communicate employment-related information to the employee.

*Many CA employers are not in compliance

Are You In Compliance?

CAHSAH 50th Anniversary Annual Conference



Requires employers to provide to each newly hired nonexempt employee in California a written notice stating:

• Name and address of the employer at the time of hiring

• Payday information

• Employee's rate(s) of pay

• Basis for the pay (hour, shift, day, week, salary, etc.)

• Any allowances claimed as part of the employee's wages

• Paid sick leave information

• Changes must be either documented in a new notice or on a paycheck *We recommend a new Wage Theft Protection Act Notice for each change.

Wage Theft Protection Act


Wage Statement Compliance



Why Should We Care About Wage Statement Compliance?

Oct. 2014: California state judge approved $15 million class action settlement against Verizon for inaccurate wage statements

June 2015: California federal judge approved $8.75 million class action settlement against Manpower Inc. for failing to include the pay period start date on statements

• Wage statement violations virtually certain to result in class action or PAGA (California Private Attorney General Act) claims asserted on behalf of all “damaged” employees

• Remedies include attorneys’ fees for plaintiffs’ lawyers

Why Plaintiffs’ Lawyers Care About Wage Statement Compliance



• The name and address of the legal entity that is the employer;• The name of the employee and the last four digits of his or her

Social Security number (or employee identification number);• Gross wages earned;• Total hours worked;• All deductions;• Net wages earned;• The inclusive dates of the period for which the employee is paid;

and• All applicable hourly rates in effect during the pay period and the

corresponding number of hours worked at each hourly rate by the employee.

• Piece-rate employees must receive information on the number of piece-rate units applicable to the pay period.

Wage Statement Requirements


Impact of New Paid Sick Leave Law

Healthy Workplace Healthy Family Act of 2014

Labor Code § 246(h):• Must include amount of paid sick leave

(or PTO) available on either the employee’s wage statement or in a separate notice

• If unlimited PSL or PTO, employer may state “unlimited” on statement or notice

• Penalties for violation of this subdivision “in lieu of” penalties for violation of § 226



Classification of Workers

Domestic Workers vs. Personal Attendants

• Who are Domestic Workers?• Domestic workers include caregivers, childcare providers or

attendants to people with disabilities or seniors, housecleaners, cooks, gardeners or other household workers

• Who are Personal Attendants?• Caregivers, childcare providers or attendants to people with

disabilities or seniors who supervise, feed, or dress a child or a person who needs supervision to due to advanced age or physical or mental disability

• Must spend 80% or more time performing personal attendant duties

• Cannot spend more than 20% of time on non-caretaking duties such as housekeeping or gardening



Minimum Wage Rights for Domestic Workers

• All Domestic Workers in CA have the right to the state minimum wage.• July 2014 - $9.00/hour

• January 2016 - $10.00/hour

Overtime Rights for Personal Attendants

• Personal attendants were originally excluded from overtime protection but in September 2013, the Governor signed into law the Domestic Work Bill of Rights, AB 241.

• Overtime must be paid as follows:• 1.5 x regular rate for work over 9 hours in a day• 1.5 x regular rate for work over 45 hours in a

week

• Certain exemptions may apply



• Domestic Workers (other than Personal Attendants)

• CNAs• RNs

• 1.5 x regular rate for work over 8 hours in a day• 1.5 x regular rate for work over 40 hours in a week• 1.5 x for the first eight hours on the seventh

consecutive day of work in a workweek • Double-time for work in excess of 12 hours in a work

day and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek

What About Other Home Healthcare Workers?


What About Other Home Healthcare Workers?

• Physical therapists, occupational therapists and speech/language pathologists

Possibly exempt from overtimeLearned Professional Exemption – Advanced Degree/Skill Minimum Salary $41,600Must Spend more than 50% of time performing exempt

duties involving independent discretion and judgment

• Otherwise, non-exempt rules for overtime should be applied




Interplay Between Federal and State Law

State vs. Federal Requirements

• California requirements vary from federal requirements• Overtime obligations • Compensability of Sleep Time (Mendiola)• Meal/Rest Periods

• The law most favorable to the employee must be applied to ensure compliance with state and federal law



Fair Labor Standards Act

Requires payment of the minimum wage for all hours worked and overtime at 1 ½ times an employee’s regular rate for hours worked over 40 in a week

Since it was passed in 1938, Section 13(a)(1) of the FLSA has exempted certain “white collar” employees

The Secretary of Labor has broad authority to “define and delimit” the exemptions

LITIGATION UPDATE:HOME CARE ASSOCIATION OF AMERICA V. WEIL



What The Law Says

Section 13(a)(15) of the FLSA provides an exemption from the minimum wage and overtime requirements for: “any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves.”

Created in 1974, when Congress extended FLSA coverage to other “domestic service” workers

Congress granted the Secretary of Labor authority to define the terms in the exemption, and DOL exercised that authority in 1975 by issuing the regulations at 29 C.F.R. Part 552

Section 13(b)(21) of the FLSA provides an exemption only from the overtime requirements for: “any employee who is employed in domestic service in a household and who resides in such household.”

Third-Party Employment

Section 552.109(a) and (c) of the regulations used to provide that the companionship and live in exemptions are available for employees “who are employed by an employer or agency other than the family or household using their services.”The New Rule revises Section 552.109 to deny the exemption to third-party employers.



PROPOSED CHANGES TO THE WHITE COLLAR EXEMPTIONS

29 C.F.R. Part 541

DOL has defined the “white collar” (or “EAP”) exemptions in regulations at 29 C.F.R. Part 541

• Executive

• Administrative

• Learned Professional

• Creative Professional

• Computer

• Outside Sales



Minimum Salary Level

Set the minimum salary at the 40th percentile of weekly earnings for full-time “non-hourly paid” employees

• Currently, $921/week or $47,892/year

• Expected to increase to $970/week or $50,400/year by the time a Final Rule is issued in 2016

CAHSAH® 2016 Annual Conference & Home Care Expo

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