At Will Employment - What Is It?
"At Will" employment is the term used for the basic employment adage that an employer can fire any worker for any reason or for no reason at all... for good cause or bad cause; an employee is employed "at the will" of the employer and the employer determines how long to employ a worker.
Employers need to be aware that legislation and court decisions in a number of states have eroded employment at will. Courts and legislatures are finding reasons to require just cause --- a rational business justification --- before employment is terminated.
Employment at will is an endangered species.
Many employers do not realize that an employee handbook with ill-conceived company policies may be the one instrument that erodes at will employment the most.
In using company policies not properly written or where disciplinary steps are outlined, the company policies may inadvertently hold out the promise to employees that employees will remain employed as long as performance is satisfactory.
For years a number of courts in various states have sought to erode at will employment through the legal theory known as "Implied Contract." These courts have found that improperly written policies in an employee handbook create an "Implied Contract" of employment.
Implied Contract means that as a result of an employer's conduct, an employee has an "implied" contract with the employer requiring that an employee's discharge be based on "cause," such as an employee's wrongdoing or inability to perform the job. Courts frequently look at the company's policies in making such a determination. It is most important that company policies and other wording in your employee handbook be properly written in order to maintain at will employment.
A specific disclaimer in the employee handbook can preserve the at will employment relationship in the face of an employee's Implied Contract claim. Not every disclaimer will have the desired effect of maintaining at will employment in the workplace. The disclaimer is best written by an attorney skilled in employment law.
A business, profit and not-for-profit, must use an effective employee handbook with policies crafted to protect employment at will.
Characteristics of an Employee Handbook Written to Protect Employment At Will
1. The company policies in an employee handbook should be written by an attorney skilled in business and employment law.
2. Your employee handbook must be written to comply with both state law and federal law as many employee claims occur in state courts under state law.
3. The company policies should be easy to implement, and in plain English.
4. A Spanish version should be available for profit and not-for profit organizations that have employees whose primary language is Spanish.
5. Proper language protecting at will employment must be clearly evidenced throughout the Employee Manual and in an employer's day-to-day-operations.
6. In Puerto Rico, "Just Cause" is required before an employee can be terminated. If you are an employer with operations in Puerto Rico, your Puerto Rico Employee Manual must have a policy on Just Cause Termination.
7. As an employer, you must keep your employee manual up-to-date. State and federal laws frequently change, so must your company policies.
Another step that employers can take to protect employment at will is to use pre-employment documents such as applications from employment, an At Will Employment Agreement and other HR forms and legal forms that reinforce at will employment.
While no one can guarantee that in any particular situation, a court or legislature in a specific state may seek to avoid at will employment, the steps outlined in this article will help businesses and not-for-profit organizations maintain at will employment.
Are you a caregiver or a personal attendant who works in a private household or home? As a household worker either as a caregiver or personal attendant, are you entitled to minimum wage? Over-time pay? Other benefits?
If hired directly by an individual or family, your benefits are different from one who is hired by a private firm or agency and governed by general employment laws: applicable federal and state statutes.
A live-in employee as opposed to a live-out employee is subject to special work rules discussed below.
A caregiver or "care custodian" is defined by Section 15610.17 of the California Welfare and Institutions Code as:
"... an administrator or an employee of...public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff."
A "personal attendant" is not entitled to overtime compensation, unless: (1.) he or she is a live-in employee; or (2.) he or she does general household work (cleaning, cooking, feeding, dressing, or supervising) that exceeds 20% of the total work time; or (3.) he or she does nurse-like duties (checking pulse, taking temperature, giving medication) more than 20% of the total work time.
In these three instances, the household worker is no longer considered a "personal attendant" and is entitled to overtime pay. Otherwise, light house keeping and cooking chores qualify as work exempt from overtime compensation.
Personal Attendant As Defined In CA IWC Wage Order 15:
Section 2(J) of the California Industrial Welfare Commission (IWC) Wage Order No. 15-2001 defines "personal attendant" as follows:
"'Personal attendant' includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household, to supervise, feed or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of 'personal attendant' shall apply when no significant amount of work other than the foregoing is required."
Indeed, the California Division of Labor Standards Enforcement (DLSE) has historically adopted the standard used in the federal regulations, 29 C.F.R. 552.6 on "companionship services," to wit:
"...(T)he term 'companionship services' shall mean those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked."
Federal regulations, 29 C.F.R 552.6, supra, further clarifies that:
"The term 'companionship services' does not include services related to the care and protection of the aged or infirm that require and are performed by trained personnel, such as registered or practical nurse."
Thus, the acceptable duties of a "personal attendant" involve activities of daily living such as getting in or out of bed, showering, bathing, using a toilet. A "personal attendant's" duties of "supervising" would include assistance in obtaining medical care, preparing meals, shopping for personal items or groceries, using a telephone, even managing money.
As long as any general housekeeping duties performed do not exceed 20% of the weekly working time spent by a "personal attendant," he or she is exempted from the protections of California Wage Order No. 15-2001 such as overtime compensation, etc., except for minimum wage. But prior to 2001, a classification as "personal attendant" also excluded minimum wage in California.
This overtime compensation exemption also applies to "personal attendants" as well as other household workers such as caregivers, spending 20% or less of their working time doing general household work, who are employed by an agency and sent to private households to work.
Benefits Of Household Workers:
A. Minimum Wage:
The state minimum wage covers all employees, including household workers (live-in employees, caregivers, and "personal attendants") but excluding legitimate independent contractors. The current California minimum wage is $8.00 per hour since January 1, 2008, a 6.7% increase over the previous $7.50 minimum wage.
There are several factors that determine whether a person is an independent contractor or not. But the primary factor is control by the employer of the means, manner and outcome of the job. An independent contractor runs his or her own household services business, has his or her tools and materials, and controls the manner and outcome of the job.
Independent contractors are not covered by minimum wage and overtime compensation statutes.
B. Overtime Pay:
Household workers who are not live-in employees, as well as "personal attendants" who do general household work that exceeds 20% of their weekly working time, are entitled to overtime compensation, consisting of one and one half times their regular rate of pay for working more than eight (8) hours in a day, or more than (40) hours in a week.
Live-in employees must be paid one and one half times the regular rate for all hours worked over twelve (12) hours (instead of over eight (8) hours) in one work day for five (5) workdays. On the sixth and seventh day, live-in employees must be paid double the regular rate for all hours worked over (9) hours per day. See California IWC Wage Order No. 15-2001 3(A)-(B) (8 Cal Code Regs. 11150(3)(A)-(B)).
Under federal law, 29 U.S.C. 213(a)(15), "any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves" is granted exemptions from minimum wage and overtime pay.
C. Other Benefits Of Household Workers:
1. Hours And Days Of Work:
A live-in employee is entitled to at least twelve (12) consecutive hours free of duty during each workday of twenty-four (24) hours, and the total span of hours for a day of work should not exceed twelve (12) hours, except that: (a) the employee must have at least three (3) hours free of duty during the 12 hours span of work; and (b) the employee required or permitted to work during scheduled off-duty hours or during the 12 consecutive off-duty hours must be paid one and one-half times the regular rate of pay for all such hours worked. See California IWC Wage Order No. 15-2001 3(A).
Moreover, no live-in employee shall be required to work more than five (5) days in any one workweek without a day off of not less than 24 consecutive hours except in an emergency. See California IWC Wage Order No. 15-2001 3(B).
2. Rest And Meal Periods:
Household workers are entitled to a ten-minute paid rest break for every four (4) hours of work under California IWC Wage Order No. 15-2001 12(A), and a thirty-minute meal period of every five (5) hours worked, just like others kinds of employees, under California IWC Wage Order No. 15-2001 11(A).
Otherwise, the employer shall pay the employee one (1) hour of pay at regular rate for each workday that the rest period, or the meal period is not provided. See California IWC Wage Order No. 15-2001 12(B), 11(D). But "personal attendants" are not granted rest and meal periods.
3. Meal And Housing Deductions From Wages:
The employer may subtract meal and housing credits from the employee's paycheck if: (a) the employee actually uses the meals and is provided with housing; (b) meals and housing are used as salary to comply with the minimum wage; and (c) the employee executes a voluntary, written agreement, crediting meals and housing towards minimum wage.
Meal credit may be deducted as follows: breakfast - Atlanta Employment Law Attorney $2.45; lunch - $3.35, and dinner - $4.50. Housing may also be credited at $31.75 per week for a room ($26.20 if shared). See California IWC Wage Order No. 15 - 2001 10(C).
In summary, whether you are a caregiver or a "personal attendant" entitled to particular wages and benefits in California or in other states depends on whether the general household work you do exceeds 20% of your total work time.
(The Author, Roman P. Mosqueda, practices wage and hour law in California.
This article is not legal advice, and no attorney-client relationship is formed with the reader. For specific labor law issues, consult a competent attorney.)