Personal Attendant Who Cared For Elderly Person Was Exempt From Overtime

Cash v. Winn, 2012 WL 1662629 (Cal. Ct. App. 2012)

Joy Cash, who is not a licensed or trained nurse, cared for Iola Winn, who is in her 90's, in Winn's home. After she left her employment, Cash sued Winn for failure to pay her overtime wages. Winn claimed that Cash was a personal attendant within the meaning of Wage Order No. 15 and thus exempt from overtime. At trial, the court instructed the jury that a personal attendant is a person who is employed to "supervise, feed or dress" an elderly person and explained that "supervision" includes assisting the elderly person with various daily living tasks. The trial court also instructed the jury that the personal care exemption (from overtime) does not apply when 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." Following the jury trial, the court entered judgment in Cash's favor for over $123,000, consisting of $33,700 in overtime wages, $14,000 in prejudgment interest, $73,000 in attorney's fees and $3,000 in litigation costs. The Court of Appeal reversed the judgment on the ground that the trial court had erred in instructing the jury about the existence of a health care exception to the personal attendant exemption.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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