An Unlicensed Caretaker Does Not Fall Outside Overtime Exemption Merely Because She Took Temperature, Pulse And Blood Sugar

Cash v. Winn
(Cal. Ct. of App., 4th Dist.), filed May 14, 2012, published May 14, 2012

KEY FACTS

Joy Cash was hired as one of two caregivers to care for nonagenarian, Iola Winn. Cash took care of Winn in Winn’s home. Cash was not a licensed or trained nurse.

When Cash interviewed for the position, the Winn family members told her they were looking for someone to be Winn’s “companion and check on her and let them know how she was doing, and prepare nutritious meals that would be good for her diabetes.” Cash was paid $10 per hour, and typically stayed with Winn 18 hours a day.

Cash’s primary tasks during her employment with Winn were helping Winn with grooming, dressing, preparing meals, grocery shopping, picking up medication, helping Winn get ready for bed, and reminding Winn to take her medications. She did, however, perform other minor housekeeping chores, including cleaning the kitchen, doing the laundry, cleaning the bathroom, taking out the trash, arranging and supervising worker appointments, and buying “household supplies.”

Cash would give Winn massages to relax her before her bedtime and because she felt massages were good for the blood flow. She would also take Winn’s vital signs, for “evaluative purposes” but would not track these. And, she would use an over-the-counter test kit to measure Winn’s blood sugar levels.

After she left the employment, Cash sued Winn for failure to pay overtime wages.

At trial, the court instructed the jury that a personal attendant as defined in California law is exempt from overtime wages. The parties agreed that a personal attendant is someone who is employed to “supervise, feed, or dress a . . . person who by reason of advanced age, physical disability, or mental deficiency needs supervision.” The parties also agreed that this status applies only “when no significant amount of work other than the foregoing is required,” and that the phrase “significant amount of work” means duties that constitute greater than 20 percent of the weekly work time.

Over Winn’s objections, the court also instructed the jury that status as a personal attendant did not apply to individuals who regularly perform any type of health care function:

Any worker whose employment duties require the regular administration of health care services such as the taking temperatures or pulse or respiratory rate, or similar health care functions, or the administration of prescription medication other than medication ordinarily self administered by an individual, regardless of the amount of time such duties take does not qualify for the “personal attendant” exemption.

The jury found that Cash spent less than 20% of her time doing “other work,” but that she did perform health care functions by taking Winn’s pulse, checking her blood sugar, etc. It thus entered judgment for Cash.

HOLDING & REASONING

The Court of Appeal framed the issue before it as:

[W]hether a person, who is not a licensed nurse of any type (professional, registered, graduate, or trained) and whose work is primarily (more than 80 percent of the time) that of a personal attendant as defined above, loses his or her status as a personal attendant because the employee regularly performs any health care related services, such as taking a “temperature or pulse” or assisting with over-the-counter blood sugar tests.

Or:

[D]oes a caretaker for an elderly person fall outside the “personal attendant” definition merely by spending a few minutes each day on these routine health related tasks, even if the employee spends more than 80 percent of his or her time supervising, feeding, or dressing the elderly individual?

The court answered this issue with a resounding “No.”

After noting that nothing in California law creates a special exemption for such a caretaker, as contrasted with a registered nurse, the court said:

Moreover, 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 domestic work.

Because Cash was not providing health care to Winn and because her “other work” took less than 20% of her time, Cash was exempt from overtime pay. Thus, Winn was entitled to a judgment in her favor.

ANALYSIS

This case seems to draw a bright line through Wage Order No. 15. A nurse is not exempt from overtime, but an unlicensed caregiver is.