Can Employers Require Personal Attendants to Work Seven Consecutive Days?
Ron Stormoen
The Issue:
Can an employer require or allow a personal attendant (under Wage Order 15) and a Domestic Worker (under the Domestic Worker’s Bill of Rights, Labor Code sections 1450-1455) to work seven (7) consecutive days in a week, and if so, what is the rate of pay?
Short Answer:
The Domestic Worker’s Bill of Rights (“DWBR”), which applies here to caregivers/personal attendants (hereafter, “personal attendants”), only specifically requires that a personal attendant be paid one half times the employee’s regular rate of pay for all hours worked more than 45 hours in the workweek. The definitions section of Wage Order 15 applies to personal attendants. (Wage Order 15(1)(B) – “Except as provided in sections 1, 2, 4, 10, and 15, the provisions of this order shall not apply to personal attendants . . .”.) “Workweek” is defined in Wage Order 15(2) as “seven consecutive days, starting with the same calendar day each week. ‘Workweek’ is a fixed and regularly recurring period of 168 hours, seven (7) consecutive 24-hour periods.” (Wage Order 15(2)(R).)
Thus, as long as the personal attendant (who also is a Domestic Worker under the DWBR) is being paid time and a half for the hours worked over 45 hours in a seven-day period, the personal attendant can work 7 consecutive days. There is no specific prohibition under Wage Order 15 or the DWBR that a personal attendant (again, under Wage Order 15 and the DWBR) cannot work 7 consecutive days.
To err on the side of caution, however, in light of the general provisions of Labor Code section 551 referenced below, it may be prudent to provide the personal attendant with one day of rest for each 7-day workweek within a calendar month (totaling 4 days of rest per calendar month).
Although not necessary for personal attendants, the employer could (to be super safe) pay the employee double her regular rate for the 7th day (but most likely not applicable because of the DWBR). (Compare Wage Order 15(3)(B) with Labor Code section 1454.)
Sources (and Comments):
Labor Code § 1454 - A domestic work employee who is a personal attendant shall not be employed more than nine hours in any workday or more than 45 hours in any workweek unless the employee receives one and one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the workweek.
That’s it; no other requirement.
Some may want to look to the follow Wage Order 15 section and pay double time for the 6th and 7th day but section 3 (in Wage Order 15) does not specifically apply to personal attendants (see Definitions in Wage Order 15 Section 1(b) and Section 2(J)):
(B) No LIVE-IN employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency as defined in subsection 2(D) [“Emergency” means an unpredictable or unavoidable occurrence at unscheduled intervals requiring immediate action], provided that the employee is compensated for time worked in excess of five (5) workdays in any workweek at one and one-half (11/2) times the employee’s regular rate of pay for hours worked up to and including nine (9) hours. Time worked in excess of nine (9) hours on the sixth (6th) and seventh (7th) workdays shall be compensated at double the employee’s regular rate of pay.
(E) An employee may be employed on seven (7) workdays in one workweek with no overtime pay required when the total hours of employment during such workweek do not exceed thirty (30) and the total hours of employment in any one workday thereof do not exceed six (6).
(F) The provisions of Labor Code Sections 551 and 552 regarding one (1) day’s rest in seven (7) shall not be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day’s rest in seven (7).
Again, double time is not necessary for personal attendants (meeting that definition in Wage Order 15 and as a Domestic Worker), just time and half.
The following are some general labor code sections. No specific code or case yet applies these to personal attendants, but it may be prudent to follow the code sections (for a one day in seven rest, but, as mentioned below, they can be cumulated during the month):
Labor Code § 551 – “Every person employed in any occupation of labor is entitled to one day's rest therefrom in seven.”
Under the Labor Code, a day of rest is guaranteed for each workweek, not for any consecutive seven-day period. Mendoza v. Nordstrom, Inc. (2017) 216 Cal.Rptr.3d 889, 393 P.3d 375, answer to certified question conformed to 865 F.3d 1261.
Labor Code § 552 – “No employer of labor shall cause his employees to work more than six days in seven.”
Comments:
Under the Labor Code provision stating that an employer may not “cause his employees to work more than six days in seven,” the term “cause” means that an employer's obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right, and that an employer may not conceal the entitlement to rest or encourage its employees to forgo rest other than by paying overtime, but the employer is not liable simply because an employee chooses to work a seventh day. Mendoza v. Nordstrom, Inc. (2017) 216 Cal.Rptr.3d 889, 393 P.3d 375, answer to certified question conformed to 865 F.3d 1261
But the one day off can be measured over a 30-day period (a calendar month), so could be stacked at the end: e.g., last 4 days are off. In other words, in a calendar month, the employee must receive the equivalent of one (1) day’s rest in seven (7), or 4 days.
Authored by Attorney Babin
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