Cash v. Winn: Court of Appeal Clarifies "Personal Attendant" Overtime Exemption

The Court did a very good job summarizing the issues in this case, so here it is:  

When a family hires an employee to care for an elderly person in his or her home, is the employee entitled to overtime pay? Under California law, the answer depends on the type of work performed by the caretaker. If the employee performs work of a "personal attendant[ ]," defined to mean "a person employed . . . to supervise, feed, or dress" the client, the caretaker is exempt from overtime pay requirements. (Industrial Welfare Commission (IWC) Wage Order No. 15-2001, §§ 1(B), 2(J), codified at Cal. Code Regs., tit. 8, § 11150.) However, if the caretaker performs a "significant amount of work" in addition to these tasks, the caretaker is not exempt from overtime pay requirements. (§ 11150, subd. 2(J).) Additionally 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. (§ 11150, subd. 1(A)(3)(f), (g).) 

The issue here is whether there exists an additional exception to the personal attendant exemption rule applicable if a caretaker, who is not a licensed nurse, performs any form of health care related services for an elderly client. Based on a sentence originally contained in an interpretive bulletin issued by the Department of Labor Standards Enforcement (DLSE) in 1986, the court instructed the jury that the personal attendant exemption to the overtime requirements is inapplicable if a caregiver, who is not a licensed nurse, regularly performs any health care functions, even if those tasks are incidental to the caretaker's primary tasks and regardless of the amount of time spent on these functions.  We conclude this instruction reflects an improper interpretation of Wage Order No. 15 and, based on the jury's findings in the special verdict form, constituted prejudicial error.  

Cash v. Winn (5/14/12) --- Cal.App. 4th ----.  

Plaintiff Joy Cash cared for defendant Iola Winn in Winn's home.  After her employment ended, she sued for overtime compensation.  At trial, the court (San Diego Superior, Judge Steven R. Denton) instructed the jury that the personal attendant exemption would not apply if Cash'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 . . . ."  Slip op. at 3.  On a special verdict, the jury found that Cash's work involved "the regular administration of health care services" as defined by the court and returned a verdict for Cash.  Winn appealed.  

The Court of Appeal reversed and ordered the trial court to enter judgment for Winn. After a long recitation of the facts and the trial, the Court held that there is no exception to the "personal attendant" overtime exemption for one who regularly performs health care related services, such as taking a temperature or pulse or or assisting with over-the-counter blood sugar tests.  

There is no California case law supporting this exception to the personal attendant definition.4  And there is nothing in the provisions of Wage Order No. 15 providing an exception to the personal attendant definition for an individual who engages in "regular administration of health care services," but who is not a trained health care provider. 

Slip op. at 17.  

The opinion is available here.