(Super. Ct. No. 37-2008-00080947- CU-OE-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Steven R. Denton, Judge. Reversed and remanded with directions.
The opinion of the court was delivered by: Haller, Acting P. J.
CERTIFIED FOR PUBLICATION
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.)*fn1 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.
Plaintiff Joy Cash, who is not a licensed or trained nurse, cared for Iola Winn, who was in her 90's, in Winn's home. After she left the employment, Cash sued Winn for failure to pay her overtime wages. In defense, Winn claimed that no overtime pay was required because Cash was a "personal attendant" within the meaning of Wage Order No. 15. The primary issue at trial was whether Winn met the definition of a "personal attendant" and thus was exempt from overtime pay requirements.
The court 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 . . . ." (Italics added.)
In a special verdict, the jury found Cash was employed to supervise, feed, or dress Winn and that Cash's other work duties did not constitute greater than 20 percent of her work time. But the jury also found that Cash's work involved "the regular administration of health care services" under the definition given by the court. Based on these findings and the jury's finding as to the amount of overtime pay owed, the court entered judgment in Cash's favor for $123,205.80, consisting of $33,711.50 in overtime wages, $14,083.40 in prejudgment interest, $72,380.50 in statutory attorney fees, and $3,030.40 in costs. The court denied Winn's posttrial motions.
Winn appeals, contending: (1) the court 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; and (2) the court erred in denying her motions for new trial and judgment notwithstanding the verdict (JNOV).
We conclude the court prejudicially erred in instructing the jury. We further determine that based on the jury's findings, the court erred in denying Winn's JNOV motion and Winn is entitled to judgment as a matter of law. We thus reverse and remand with instructions to enter judgment in Winn's favor.
FACTUAL AND PROCEDURAL SUMMARY
In 2005, Cash was working as a caregiver for elderly clients. She had never attended nursing school and was not a licensed nurse or dietitian. Cash, however, had education, training, and experience in massage therapy and nutrition, and had previously operated a childcare facility.
In approximately October 2005, Winn's family members interviewed Cash for a position as Winn's caregiver. At the time, Winn was 94 years old and lived alone in a small cottage about 800 or 900 square feet. Cash knew the Winn family because she had rented property from the Winns in the 1970's. During the interview, the Winn family members told Cash they were looking for someone to be Winn's "companion and check on her and let them know how she was doing, and prepare nutritious meals that would be good for her diabetes." The family members told Cash that Winn was recently hospitalized for a diabetic episode. They also told Cash that the doctors had instructed that Winn have "plenty of protein and fruits and vegetables," but no "sweets" or "sugars." The doctors did not prescribe insulin injections, and instead told the family that Winn's diabetes should be controlled with a proper diet.
Shortly after, the Winn family hired Cash and they agreed on a $10 per hour wage. After about one month, Cash began staying with Winn approximately 18 hours per day, including sleeping in the house. She would usually arrive at Winn's residence at about 11:30 a.m. and leave the next morning at about 6:00 a.m. A second caretaker worked from 6:00 a.m. until 11:30 a.m. In addition, various Winn family members came to Winn's home in the evenings and on weekend days.
When Cash would first arrive at the house before noon, she would ask the other caregiver about Winn's blood sugar level and would begin planning a noon meal based on that level. She would then cook the meal and eat lunch with Winn. She obtained information from the Internet about diabetes guidelines and attempted to follow them.
According to Cash, her primary tasks during her employment with Winn were helping Winn with grooming, dressing, preparing meals, grocery shopping, picking up medication, helping Winn get ready for bed, and reminding Winn to take her medications. During the afternoons, Cash "was always interacting" with Winn because Winn "was afraid to be left alone." Cash also testified that she would spend substantial time each day performing numerous household maintenance and cleaning tasks, including cleaning the kitchen, doing the laundry, cleaning the bathroom, taking out the trash, arranging and supervising worker appointments, and buying "household supplies."
With respect to Winn's medications, Cash testified that Winn took medications twice a day. Winn's medications were kept in a basket with instructions as to when each should be taken. Cash would bring the basket to Winn and generally Winn would take the medications on her own. Cash said she would "go in the kitchen and read the labelings, get the appropriate amounts out for [Winn], bring them to her with water and apple sauce, and cut [some of the pills] and give [the medication] to her."
When Cash's counsel asked her what she would do on a "daily basis" relating to providing "healthcare" services to Winn, Cash identified several categories of tasks.
First, Cash said she would "massage" Winn's back, feet and legs. She said she performed these tasks "[m]ainly for soothing" purposes to help "settle" down Winn for the night, but she also gave the massages because they were good for "general circulation," and "to make sure there was blood flow in the legs."
Second, Cash said she would check Winn's "vital signs" by feeling Winn's pulse while she was having a "panic attack." Cash said that Winn would have a panic attack about five times a week, and that Cash would check Winn's pulse about four times a week. Cash said she would not write down the pulse rate or communicate the rate to a doctor or the family, but said she would check the rate to "evaluat[e]" Cash's panic attack. Specifically, Cash stated she would take Winn's pulse rate "[j]ust to see if [the panic attack] was a real -- you know, if she was really stressed with the panic attack or not."
Third, Cash said she would "measure" Winn's oxygen by observing "blueness in [her] finger." She said she would do this about four or five times per week. Cash would also observe Winn's skin tone and eyes because "you can tell a lot by . . . what we call in Chinese medicine, [the] shin of the eyes."
Fourth, Cash said she would test Winn's blood sugar about once or twice a day. She would perform this test using Winn's over-the-counter blood sugar test kit. When asked how much time she would spend on this task, Cash responded: "15 to ...