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Personal attendant, who was not a licensed nurse and performed certain health care related services for an elderly client, such as taking a temperature or pulse or assisting with over-the-counter blood sugar tests was exempt from overtime

Cash v. Winn (2012) 205 Cal.App.4th 1285, 140 Cal.Rptr.3d 867

Background: Plaintiff Joy Cash, who was not a licensed or trained nurse, cared for Iola Winn in Winn’s home. After she left the employment, Plaintiff sued Winn for failure to pay overtime wages. In defense, Winn claimed that Cash was a “personal attendant” within the meaning of IWC Wage Order No. 15 hence, exempt from overtime. The primary issue at trial was whether Winn met the definition of a “personal attendant”.

Court History: Based upon jury’s finding that, that Cash’s work involved “the regular administration of health care services” the trial court entered judgment in favor of the Plaintiff and also denied Winn’s posttrial motions. Winn appealed.

Pertinent Issues addressed: On appeal, Winn argued that the trial court had erred in instructing the jury that the personal attendant exemption did not apply if Cash regularly performed any “health care services,” defined to include “taking temperatures or pulse or respiratory rate,” regardless of the amount of time spent on these tasks.

The trial court had instructed the jury that a personal attendant is a person employed to “supervise, feed or dress” an elderly person who needs care, and explained the meaning of “ ‘supervision’ ” as including assistance with various daily living tasks. The court also instructed the jury that the personal attendant exemption does not apply when: (1) the employee performs significant other work duties, meaning “duties which constitute greater than 20% of the weekly work time”; or (2) 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 Court of Appeal agreeing with Winn concluded that, the trial court prejudicially erred in instructing the jury and accordingly, reversed and remanded with instructions to enter judgment in Winn’s favor.

The Court of Appeal explained,

“The issue here, however, is whether 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. In other words, does 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 answer is no. There is no California case law supporting this exception to the personal attendant definition 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. The express language of the “ ‘Personal attendant’ ” definition applies to an employee who is engaged to “supervise, feed, or dress” a client if the employee spends a significant amount of his or her time on these tasks. (§ 11150, subd. 2(J).) This language cannot be reasonably interpreted to mean that the employee falls outside the definition if the employee regularly engages in a single “health care” related task (including “taking temperatures or pulse or respiratory rate”), regardless whether these services are an incidental or minor part of the caretaker’s work.”

Pointers:

  • The Case clarifies and provides guidance on exception to “personal attendant” overtime exemption. Clearly, the amount of time spent on tasks is the most determinative factor.