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Who's Responsible?

A Sonoma County lawsuit over unpaid wages could radically alter the structure of in-home care


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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.


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