Home Care Worker May Sue County for Unpaid Wages

What will be the impact of the California Supreme Court’s decision to deny the request of Sonoma County to review the Court of Appeal of California’s decision allowing a home care worker, who was employed to provide in-home support services to eligible recipients under California’s In-Home Support Services (IHSS) program, to sue Sonoma County and the Sonoma County IHSS Public Authority for unpaid wages and allow a jury to decide the case? The case, which has been followed and reported by many sources from the initial filing through the lower court decisions, could open the door for a large number of home care workers to pursue similar claims against other California counties for unpaid wages, Brett Wilkison of the Press Democrat reported. See Guerrero v. Superior Court of Sonoma County (213 Cal. App. 4th 912, Feb. 11, 2013).

Sonoma County and other counties in the state as well as the state Attorney General’s Office had appealed the decision of the Court of Appeal of California that concluded that the Superior Court erred in sustaining demurrers to the home care worker’s wage and hour claims and determined that Sonoma County and the IHSS Public Authority were joint employers for purposes of the home care worker’s state and federal wage and overtime claims.

The IHSS Program

The IHSS program (California Welfare & Inst. Code sec. 12300 et seq.) is a Medicaid program administered by counties and funded by state and federal dollars. It pays workers to care for low-income, ill, and disabled residents and residents over 65 years of age as an alternative to out-of-home care, such as nursing homes or board and care facilities. Disabled children also are potentially eligible for IHSS. The types of services that can be authorized through IHSS are housecleaning, meal preparation, laundry, grocery shopping, personal care services (such as bowel and bladder care, bathing, grooming and paramedical services), accompaniment to medical appointments, and protective supervision for the mentally impaired.

The Home Health Worker’s Claims and Court’s Opinion

Adelina Guerrero was employed under California’s IHSS to provide in-home support services, including personal care, housekeeping, and other in-home services to Alejandra Buenrostro (Buenrostro) to eligible recipients in Sonoma County. According to Guerrero, she worked seven hours a day, seven days a week for nearly four months for a total of 501 regular hours of employment and 87 hours of overtime, but Buenrostro never paid her and disappeared. Guerrero alleged that Sonoma County, the Sonoma County IHSS Public Authority (IHSS Public Authority), Buenrostro and Sherry Amezcua, who was allegedly authorized to act on behalf or Buenrostro, employed her and either directly or indirectly exercised control over her wages or hours or conditions of employment or all of the foregoing and all defendants had violated the federal Fair Labor Standards Act of 1938 (FLSA) and California statutes by failing to pay her minimum wages and overtime premium wages owed to her for personal services. Guerrero’s lawyer, William Hoerger of California Rural Legal Assistance, said that Buenrostro had been quietly submitting Guerrero’s time sheets to the county and collecting her paychecks, which totaled more than $10,000, according Bob Egelko in an article in the San Francisco Chronicle. Hoerger also said the IHSS advocates told him that “the number of workers who don’t get paid or get cheated out of their wages … (is) in the thousands, and for the most part there is no remedy.”

Steve G. Pearl, an employment lawyer and mediator with ADR Services, Inc., in a post in the California Employment Law Blog, presented a review of the court’s decision. Pearl said that the court determined that “[a]lthough providing IHSS-funded care does not constitute employment for all purposes, the County and the Authority were Guerrero’s joint employers for FLSA purposes because: (1) their power over the employment relationship by virtue of their control over the purse strings was substantial; (2) her wages were determined and paid by the state and its agents, the County and the Authority; (3) the County and the Authority maintained employment records on Guerrero; and (4) the County had an inherent role in supervising the provision of services by IHSS providers such as Guerrero. Slip op. at 12-30.” Furthermore, Pearl noted that the court concluded that “the County and Authority were Guerrero’s employers for purposes of California wage law because: (1) California’s protections cannot be any less protective of employees than federal law; (2) while they did not directly hire, fire, or supervise providers, through their “power of the purse” and quality control authority, the County and the Authority had “the ability to prevent recipients and providers from abusing IHSS authorizations both as to the type of services performed and the hours worked. The trial court thus erred in finding that they did not suffer or permit Guerrero to work and were not her employers. Slip op. at 36-45.”