Hired caregivers (also known as home care aides) permit many California seniors to remain in their homes as they age and need assistance with activities of daily living.  Yet from my window looking out at Sacramento, I can see massive liability associated with the classification and payment of such workers.  Consider that baby boomers are now entering their 70s and a 75-year-old American has a life expectancy of 12.2 years.  A growing number of seniors will need help.

Let’s say Dad has advancing dementia, perhaps caused by Alzheimer’s disease, and needs round-the-clock caregivers to help with cooking, cleaning, toileting, and dressing.  His daughter, perhaps as agent under his power of attorney or as a trustee of his trust, hires a home care agency, at a rate of $25-plus per hour, to provide multiple shifts of caregivers.  Then one of the caregivers offers to work directly for Dad (and to bring in others to do the same) at a straight hourly wage of $15 per hour.  This could save $250 or more per day, which will add up quickly as the weeks pass.

What’s wrong with this approach?  Federal and California law likely treats caregivers as employees of the elders they serve.  If the elder’s family ignores the assorted legal requirements associated with the employer/employee relationship, the elder (or his beneficiaries when he dies) may face hefty liability on two fronts.  As we’ll briefly discuss below, tax authorities may seek taxes, interest and penalties.  In a later post, we’ll explain how caregivers may sue for unpaid overtime and failure to provide meal and rest breaks – indeed, California law encourages such suits by awarding legal expenses to prevailing plaintiffs.…