Overtime Pay for Personal Attendants

Overtime for Nannies, Caregivers, and Other Personal Attendants

Starting January 1, 2014, nannies, caregivers, and other “personal attendants” working in private homes in California will be entitled to overtime pay. The Domestic Worker Bill of Rights was signed into law by Governor Jerry Brown on September 26, 2013, and requires domestic employees who are “personal attendants” to receive one and one-half times their regular rate of pay for all hours worked over nine hours in any workday and over 45 hours in any workweek. “Personal attendants” are employees who: (1) supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision, and (2) spend at least 80% of their time in those activities.

Personal attendants have historically been excluded from many of California’s wage and hour laws, which allowed flexibility for households and families who rely on domestic workers for personal care. Prior to the Domestic Worker Bill of Rights, personal attendants were exempt from California’s overtime-pay requirements. The new bill specifically provides overtime premium pay for personal attendants, including live-ins, for hours worked over nine in a day or 45 in a week. The bill does not, however, require domestic employers to provide personal attendants with meal or rest periods.

The bill provides several exclusions to the overtime requirement for personal attendants. Most notably, the bill does not provide overtime pay for casual babysitters. A casual babysitter is defined as a person who babysits on an irregular or intermittent basis and whose vocation is not babysitting. If a babysitter does a significant amount of work other than supervising, feeding and dressing a child, the babysitter will be considered a domestic work employee and will be entitled to overtime pursuant to the bill.

Also exempt from the overtime requirement is any person under 18 years of age who is employed as a babysitter for a minor child in the employer’s home, as well as any parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer.

Domestic employers in California should be aware that in addition to complying with California’s Domestic Worker Bill of Rights, they must also comply with existing federal law regulating domestic caregivers. Under the Federal Labor Standards Act (FLSA), employers with non-live-in nannies (i.e., personal attendants to care for a child) remain responsible for complying with federal overtime rules which require overtime pay of one and one-half times the nanny’s regular rate of pay for all hours worked over 40 in a workweek. Further, an employee who provides at-home companionship for adults who cannot care for themselves due to advanced age or physical or mental infirmity remains exempt from the FLSA’s minimum wage and overtime requirements.

The new bill does not affect the wage and hour requirements of other domestic work employees, such as housekeepers, maids and other workers engaged in the maintenance of private households and their premises. Those employees generally remain entitled to overtime pay at one and one-half times their regular rate of pay for all hours worked in excess of eight hours and up to 12 hours in any workday, in excess of 40 hours in any workweek, and for the first eight hours worked on the seventh consecutive day of work in a workweek. Those employees also remain entitled to double-time for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek. Such housekeepers, maids, and other domestic work employees who are not personal attendants remain entitled to meal and rest periods.

The bill is set to expire on January 1, 2017, unless it is extended. In the meantime, the bill requires the Governor to convene a committee to study and report the impact of this overtime requirement on domestic workers and their employers.