SAN FRANCISCO (Legal Newsline) – The case of California caregiver who alleged she was not paid overtime has been remanded back to a lower court by a state appellate court.
Judge Mark Simons, on the bench of California's 1st District Court of Appeals, issued a 34-page ruling on Jan. 11 reversing the Contra Costa County Superior Court's decision in the lawsuit filed by Nichelle Duffey against Tender Heart Home Care Agency LLC.
In his ruling, Simons stated that "the trial court erred in exclusively applying the so-called 'common law' test," set in similar cases, adding that "there is a dispute of fact as to whether plaintiff was Tender Heart’s employee."
Duffey sued Tender Heart alleging that the health care company violated the Domestic Worker Bill of Rights (DWBR), a California state law that requires domestic workers get paid overtime if they work over nine hours a day or 45 hours per week.
As stated in the ruling, "in 2011, plaintiff signed a form contract with Tender Heart titled 'Professional Caregiver Agreement,'” which stated that "Tender Heart 'is a caregiver placement agency whose business is to obtain contracts for caregivers in dwellings and to refer by subcontract such contracts to professional independent caregivers,'" and that Duffey "is 'an independent contractor' and 'an independent domestic worker, who is in the business of providing care giving services in dwellings and hereby solicits such contract for services from [Tender Heart].'"
After DWBR was enacted, in 2014, Duffey did not get paid for any overtime that was due, and, in December 2015, she filed the suit against Tender Heart. The lower court decided in favor of the health care agency, considering Duffey was indeed an independent contractor and not an employee.
1st District Court of Appeal California case number A152535