- EMPTY BED Due to wording loopholes, the county's IHSS isn't required to pay in-home caregivers stiffed by their clients.
In a lawsuit that could shake up the homecare industry statewide, a Sonoma County caregiver is claiming that she worked seven days a week for three months without ever being paid. While a local judge dismissed the case in 2011, an appellate court's recent opinion may give it new life, revealing the confusing and sometimes contradictory language of in-home-care laws.
According to court testimony, Santa Rosa caregiver Adelina Guerrero worked as an in-home services provider for Alejandra Buenrostro from November 2008 to January 2009.
Confusion about the manner in which she would be receiving wages left her empty-handed until she went to the county's In Home Supportive Services (IHSS) department, which pays $11.50 an hour to the caregivers of low-income disabled clients.
"She registered and signed up and attempted to submit [her hours] through the county, and at that point, she found out that the county had already paid for the work," says Guerrero's lawyer, Jeff Hoffman of California Rural Legal Assistance.
So where did that money go? Buenrostro's grandmother and legal representative Sherry Amezcua was registered through IHSS as her care worker, according to Diane Kalijan of Aging and Adult Services. During the time Guerero claims she was working, Amezcua was submitting timesheets and receiving the payment her caregiver is allegedly owed.
Guerrero was never paid, and Buenrostro and her grandmother disappeared, according to Hoffman. The question raised in court is whether these unpaid wages are the responsibility of the county's IHSS.
County agencies say they aren't. Although an IHSS social worker vets potential clients and then the public agency foots their caregiving bill, those clients are responsible for hiring, firing and supervising their own caregivers. "The client is considered the employer for their caregiver," the IHSS website states.
A document from the original legal scuffle, dated May 2011, argues that because the county agency cannot supervise or hire workers, it shouldn't be considered an employer in this instance either. "A holding that the County or the IHSS-PA is an employer for wage and hour purposes would lead to the absurd result of imposing liability on the County Defendants when they are statutorily prohibited from controlling the employment relationship between the IHSS recipient and the provider," it reads.
Thus, in the county's estimation, no foul play on its end occurred. In 2011, the court agreed, and the county's demurrer was sustained. "We followed the regulations as written and paid the provider of record," Kalijan says.
But according to Guerrero's testimony, the county paid the wrong provider—an oversight that, if the caregiver's story is true, allowed an exchange of public money that looks an awful lot like theft.
"It's our contention that the county has a duty to investigate this kind of thing," Hoffman says. Guerrero's argument juxtaposes these supposedly misdirected payments with federal and state labor laws, claiming that the county was, in fact, her employer.
Her statement isn't unfounded, according to the court of appeals. In a document called an appellate opinion, published in February, it claims that the county's role is opaque at best, drawing on past cases and reasoning: "The IHSS statutes treat providers as employees for some purposes, but not for all."
When an IHSS worker receives direct payment from a county, for example, their check is coming from the state, which acts as an employer by providing disability benefits, workers' compensation, federal and state income tax and insurance benefits.
The document cites a 1983 case arguing that IHSS "had complete economic control over the relationship. The 'economic reality' was that the [agencies] employed the chore workers to perform social services for the benefit of the recipients. The fact that the [agencies] delegated to the recipients various responsibilities does not alter this, it merely makes them joint employers [with the recipients]."
The Court of Appeals released its statement in February, and further action is pending.
Since Amezcua began collecting wages in 2008, the county has tightened its regulations on caregivers. To collect that hourly wage, workers have to complete an orientation and pass a background check. But when the contested guardian registered as her granddaughter's caregiver, she didn't have to do either. She, like absolutely anyone else the disabled person chooses, could simply sign up.
This isn't unsurprising in a field that is wildly unregulated, at least on the private side. To practice nonmedical home care in California, all you need is a business license. Add to the mix the fact that recipients of this care are often aged, seriously ill or disabled, and you have a recipe for fraud. Last year, the Bohemian reported on a similar case, in which a caregiver disappeared with $22,000 of her elderly client's money. One of the clients suffered from severe Alzheimer's, and died soon after her caregiver fled.
And while different laws govern the industry across the public-private spectrum, the murky gray area of who exactly functions as the employer is a common thread. In the world of private home care, referral agencies can collect a hefty portion of a care worker's hourly wage without providing benefits or workers' compensation because, technically, the client can be defined as their employer.
"The state of California has some loophole laws," says Marc Winter, the president of Hired Hands Homecare, a full-service agency that does act as an employer to its caregivers. "Referral agencies can basically farm out caregivers, and everything else is between the caregiver and the senior."
However, Winter says, the broader implications of this employment triangle aren't always apparent to all parties involved—especially if the person functioning as an employer has a debilitating disease.
"With the Guerrero case, that's kind of coming into play," he says, acknowledging that referral agencies and IHSS are structured in a similar manner.
If the case is successful in its second go-round, it could mean upheaval for the county program.
"It would fundamentally change the IHSS program if the lawsuit was successful," Kalijan says. "It would change the part about the consumer being the employer; it would change the county's responsibility; it would change the way providers work with overtime as a consideration. At the minimum, there would have to be state law change, and that would have a tremendous impact on local operations."
Could this change trickle out into the private industry, sometimes shaped in the same way?
Perhaps, according to Hoffman.
"It's expounding upon the whole nature of the relationship between employer and employee," he says. "Any cases that deal with joint employers could possibly be applicable, if, by analogy, they're doing the same things as the county."
Whatever the outcome, Hoffman agrees that the case has a far-reaching effect.
"It doesn't just apply to this county," he says.