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It is not uncommon for seriously injured workers to be awarded home health care services by the WCAB. In some cases the claim is for services 24 hours a day. It is similarly not uncommon for the employer to meet this obligation by payment for services to a spouse or family member of the injured worker. It is unfortunately very uncommon for employment law issues such as wage hour and meal breaks and overtime pay to be included in this arrangement with the family member, or for that matter, a clear understanding of who exactly the caregiver’s employer might be. Lurking in the background is a supplemental claim for back pay and penalties as illustrated by this announcement by the California Labor Commissioner.

California Labor Commissioner Julie A. Su awarded $138,386 in back pay to a caregiver who worked 16-hour days in San Francisco for less than minimum wage, usually without a day off. The amount includes minimum wage and severance pay violations, liquidated damages and waiting time penalties.

Francisca Vasquez, a Salvadoran war refugee, was hired in 1992 by siblings Magdalena Lindvall and Reynaldo Peña Jr. to work as a companion for their elderly parents for $400 a month. Eventually Vasquez became a housekeeper and then round-the-clock caregiver to their mother for $500 a month. Upon the mother’s death, Vasquez was discharged.

“Workers are not always aware of their rights,” said Christine Baker, Director of the Department of Industrial Relations (DIR). “California labor law protects domestic workers as well as others who work in industries susceptible to wage theft.” The Labor Commissioner’s Office, also known as the Division of Labor Standards Enforcement (DLSE), is a division within DIR.

Because Vasquez filed her claim two years into the three year statute of limitation for minimum wage claims, she could only collect wages on the last year she worked.

“This was an egregious case of worker abuse, where someone providing care was treated with an utter lack of care for her rights and for her humanity,” said Labor Commissioner Julie A. Su. “I am pleased that through the Berman wage claim process, my office was able to help her get some of the hard earned wages she deserved. This is a sign that when workers come forward to file wage claims, they can win some measure of justice.”

The Labor Commissioner awarded her $50,008 for wages, $48,209 in liquidated damages, $35,707 in interest, and $4,464 in penalties. Vasquez was assisted in the wage claim process by the community organization Mujeres Unidas y Activas and the Legal Aid Society – Employment Law Center.

There is no clear solution that would apply generically across worker’s compensation cases to minimize risk in home health care situations where a family member becomes the paid caregiver. It would be prudent to consult an employment law attorney, such as Bernadette O’Brien at Floyd, Skeren and Kelly should there be concerns about what this risk might be, or how it might be mitigated.