Is this a "Winn"-Win or a "Cash" Out?

As the population ages, there's a growing industry of caretakers who will be working in the homes of the elderly. These persons will often spend nearly all of the 24-hour day in the home of the client. The question arises: are these caretakers entitled to overtime in excess of 8 hours per working day?

The California Court of Appeal in the case of Cash v. Winn 2012 DJDAR 6267 (Decided May 14, 2012), held that caretakers are exempt from the overtime laws even when they provide some services which appeared to be “medical services”. The plaintiff in the Cash case was not a registered nurse. This point is important because registered nurses as a class are entitled to overtime. On the other hand, IWC wage order no. 15–2001, codified as CCR Title 8, Sec. 11150, exempts from overtime those workers who perform work as “personal attendants.” Thus the issue was framed: if a “personal attendant” provides medical services, is the person no longer a “personal attendant” within the meaning of the IWC Wage Order?

The trial court gave a jury instruction that a “personal attendant” is no longer a “personal attendant” within the IWC order if the employee does ANY work that “requires the regular administration of healthcare services such as the taking of temperatures or pulse or respiratory rate ... regardless of the amount of time such duties take ...”

The testimony by the “personal attendant” was that she took her client’s “vital signs”, tested her for blood sugar levels, and tested her oxygen intake. Even so, the evidence was that these “medical” activities were only a few minutes each day generally, and that the vast majority of the “personal attendant’s” time was spent performing classical caretaker duties such as dressing, assisting with walking, transporting, cleaning, feeding, and so forth.

Finding that performing some medical like functions did not remove the overtime exemption for a “personal attendant”, the court noted that the purpose behind the IWC order was to make home healthcare cost affordable to the elderly and their families. Checking that a client take her medications, adjusting her oxygen levels, or administering blood sugar level tests, do not “per se” invalidate the exemption.

This legislative intent produces an unusual situation: a licensed professional nurse performing medical functions at a client’s home will be permitted to earn overtime. One cannot help but feel that the nursing lobby was successful on this point. On the other hand, an untrained person performing menial tasks is exempted from overtime. This outcome reminds me of the adage that legislation is like a sausage: you don't want to know what goes into it.

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