Personal Assistants vs. Companions: Definitions and Exemptions

The California Industrial Welfare Commission Wage Order 15 (effective April 1, 1986) defines “personal assistant” to include nannies and any person employed directly by a private homeowner or indirectly through an outside employer to supervise, feed, or clothe a child or person who by reason of old age, physical incapacity, or mental deficiency requires supervision.

Provides an exemption to overtime, meal period, rest period, and recordkeeping pay requirements for individuals who qualify as a personal assistant, except for the minimum wage.

other job not exceeded 20% of Working time:

But to retain the exemption, an amount of “other work,” that is, no more than 20 percent of the employee’s work time. Housework is considered “other work” that is counted against the 20 percent limit.

In general, domestic work exceeds 20 percent of total weekly hours worked, exemptions are lost.

Thus, in Cardenas v. mission Industries, 226 Cal.Application. 3952, 277 cal. Rptr. 247 (1991), the court upheld the decision that a line worker did not qualify as a personal assistant because the employee did a substantial amount of non-child care work, namely: grocery shopping, laundry, running errands, preparing dinner for the whole family.

But personal assistants subject to Wage Order 5 (public cleaning industry) and not Wage Order 15 (domestic occupations) may work additional hours in an emergency, but must be paid time and a half for the excess hours.

internal employees Payment:

Section 3 (A) AND (B) of Wage Order 15 entitles live on-site employees to time and a half for the first nine (9) hours worked on a sixth or seventh day, double time for hours that exceed nine o’clock on said days.

But resident domestic employees have a full overtime exemption under Section 13(b)(21) of the federal Fair Labor Standards Act, and a partial overtime exemption under Wage Ordinance 15.

And domestic workers receiving room and board can be paid once a month on the day designated in advance by the employer, under Section 205 of the California Labor Code.

who are not Personal assistants:

The California Division of Labor Standards Enforcement (DLSE) has stated that licensed vocational nurses (LVNs) and workers who regularly administer medications or take temperature pulses or respiratory rates They do not normally qualify as personal assistants.

But isolated medication assistance has been interpreted as including “supervision” work by a personal assistant.

Also, the exemption does not apply if the service is performed by trained personnel, such as a registered or practical nurse, but a certified nursing assistant (CNA) is not considered trained personnel, according to the 9th Circuit in McCune v. Oregon Division of Senior Services, 894 F.2d 1107, 1111 (9th Cir. 1990).

Finally, the exemption does not apply to services that are not performed in a private home, or to the care of minor children who are not mentally or physically ill.

Bedtime Compensation:

An inside employee is not considered to be working when free from all duties and able to leave the premises for personal purposes, including periods when eating, sleeping or entertaining. These are not home worked.

Therefore, employers and employees are encouraged to agree to a reasonable settlement under Wage Order 5 (public cleaning industry), but not Wage Order 15.

But the California Wage and Hour Division counts all sleep time as hours worked, if an employee is required to be on duty for less than 24 consecutive hours.

If an employee is required to be on duty for 24 or more consecutive hours, the employee and employers may agree to exclude a sleep period of not more than eight hours from the hours worked, as well as exclude the meal period from the hours worked. worked.

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