Classification of Personal Assistants and Live-In Caregivers

Every worker is presumed to be an employee. (Labor Code § 3357.) An employer may rebut this presumption by establishing that a worker is an independent contractor. In order to determine whether a worker is an employee, courts typically apply the common law test.  Under the common law, the test of an “employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.’” (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350, quoting Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 946.)

The fact that a certain amount of freedom is inherent in the nature of the work does not change the character of the employment relationship where the employer has general supervision and control over it.

(Burlingham v. Gray (1943) 22 Cal.2d 87, 100)

Significantly, what matters under the common law is how much control the hirer retains the right to exercise. (Perguica v. Ind. Acc. Com. (1947) 29 Cal.2d 857, 859–860.)

While the extent of the hirer’s right to control the work is the foremost consideration in assessing whether a common law employer-employee relationship exists, a wide variety of secondary indicia also evidence an employer-employee relationship. For example, courts also consider (i) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (ii) the length of time for which the services are to be performed; and (iii) the method of payment, whether by the time or by the job. (Borello, supra, 48 Cal.3d at 351.)

California law defines a “personal attendant” as:

any person employed by a private householder . . . in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant shall apply when no significant amount of work other than the foregoing is required. For purposes of this subdivision, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked.

(Labor Code § 1451(d).)

Answering and making telephone calls, cleaning the house, doing household laundry, running errands, and coordinating handyman and gardening services are types of activities that have been held to be tasks unrelated to the duties of a personal attendant. (See Cardenas v. Mission Industries (1991) 226 Cal.App.3d 952, 956, 958, disapproved on another ground in Smith v. Rae–Venter Law Group (2002) 29 Cal.4th 345, 370.)  The Division of Labor Standards Enforcement has also opined that general housekeeping duties constitute “other” work.  (D.L.S.E. Interpretive Bulletin 86-1 (March 12, 1986).)  An employee undertaking general housekeeping activities more than 20 percent of the time would be entitled to overtime at the same rate as other workers in California.

The applicable Industrial Welfare Commission, Wage Order provides that non-live-in employees:

shall not be employed more than eight (8) hours in any workday or more than 40 hours in any workweek unless the employee receives one and one-half (11/2) times such employee’s regular rate of pay for all hours worked over 40 hours in the workweek. Eight (8) hours of labor constitutes a day’s work. Employment beyond eight (8) hours in any workday or more than six (6) days in any workweek is permissible provided the employee is compensated for such overtime at not less than:

(1) One and one-half (11/2) times the employee’s regular rate of pay for all hours worked in excess of eight (8) hours up to and including 12 hours in any workday, and for the first eight (8) hours worked on the seventh (7th) consecutive day of work in a workweek; and

(2) Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight (8) hours on the seventh (7th) consecutive day of work in a workweek.

(Industrial Welfare Commission Wage Order No. 15, § 3(C))

According to the Industrial Welfare Commission Wage Order No. 15, “Hours worked” means the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” Mendiola v. CPS Sec. Solutions, Inc. (2015) 60 Cal. 4th 833, 836.

Under the law, payment of a fixed salary to a non-exempt employee provides compensation only for the employee’s regular, non-overtime hours, notwithstanding any private agreement to the contrary. (Labor Code § 515(d)(2).)