Last week, in Cash v Winn, a California Court of Appeal flatly rejected an exception to the personal attendant exemption from overtime for individuals who provide in-home “health care services.” Under California Industrial Welfare Commission Wage Order No. 15-2001 (“Wage Order”), individuals employed as “personal attendants,” defined to mean employees who “supervise, feed, or dress” the client, are exempt from overtime pay requirements. However, if the caretaker performs a “significant amount of work” in addition to these tasks, the caretaker is not exempt from overtime pay requirements. In addition, with certain exceptions, if the caretaker is a registered nurse employed to engage in the practice of nursing in the home, the nurse is not exempt from overtime pay requirements.  

The issue the court addressed in Winn was whether there exists an additional exception to the personal attendant exemption rule if a caretaker, who is not a licensed nurse, performs any form of health care related services for an elderly client. After conducting a thorough analysis of the relevant case law and statutory authority, the Fourth District Court of Appeal concluded that such an exception was inconsistent with the spirit and letter of the Wage Order.

The plaintiff in Winn, who was not a licensed nurse, worked as a caregiver for a 94-year-old woman, spending approximately 18 hours per day with her, including sleeping at her house. The plaintiff’s primary tasks were helping her employer/client with grooming, dressing, preparing meals, grocery shopping, picking up medication, and helping to get her ready for bed. Additionally, the plaintiff gave her client medication twice per day, massaged her back, feet, and legs, and checked her pulse when she was having a panic attack. The plaintiff also claimed that she “measured” her client’s oxygen levels by observing the blueness in her finger and tested her blood sugar level twice per day.

After she left employment, the plaintiff sued her former employer/client for unpaid overtime, arguing that because her duties required the “regular administration of health care services” she fell under the so-called health task exception to the personal attendant exemption. At trial, the court instructed  the jury that the personal attendant exemption was inapplicable where the employee’s “duties require the regular administration of health care services such as the taking [of] temperatures or pulse or respiratory rate . . . , regardless of the amount of time such duties take . . . .” The jury found that the plaintiff “was employed to supervise, feed, or dress Winn and that [her] other work duties did not constitute greater than 20 percent of her work time.” However, the jury also found that the plaintiff’s work involved the “regular administration of health care services.” As a result, judgment was entered in favor of the plaintiff, who was awarded $123,205.80.

The appellate court reversed, finding the jury instruction was erroneous. The court rejected the plaintiff’s argument that there was a health care services exception to the personal attendant exemption.  Among other things, the court pointed out that three opinion letters from the California Division of Labor Standards Enforcement (“DLSE”) upon which the plaintiff relied to support her argument were premised, without analysis, on an interpretive bulletin issued by the California Labor Commission that was declared void by the California Supreme Court in 1996.  Further, the court found that the DLSE opinion letters lacked any analysis and concluded that they should be disregarded on that basis as well.

Additionally, the court found compelling policy reasons to reject the health task exception to the personal attendant exemption. The court noted that “such an interpretation would be inconsistent with the policy underlying the narrow personal attendant exemption rule, which seeks to control homecare costs for elderly individuals who need help with daily living activities and thus avoid the need for institutionalization, while maintaining the overtime pay requirements for all other types of work.” Further, the court went on to note that “[a]n in-home caretaker's work providing assistance to elderly individuals who cannot care for themselves will almost always involve some form of health care related function . . . . If we were to recognize a blanket exception to the personal attendant exemption for a caregiver who regularly engages in any regular health care related tasks . . .  regardless of whether the services are incidental to the main caretaking job, the personal attendant exemption would be eliminated with respect to care for elderly persons.” Accordingly, the court rejected the inclusion of an exception to the personal attendant exemption for a caregiver who is not a licensed nurse but who “regularly performs any healthcare functions.”  

Winn provides much-needed clarity to the personal attendant exemption under California wage law and rejects an attempt to create a judicial exception that could have swallowed the entire personal attendant exemption.

Photo credit: Dave Sucsy Photography