Can a Hired Caregiver Sue Your Family?

In this article:

• Four reasons a hired caregiver could sue your family
• How to protect yourself from a caregiver lawsuit
• Be prepared in your search

When looking for a caregiver to meet the needs of your senior loved one, there are factors you should be aware of in order to minimize your legal risk. Home care aides and hired caregivers can sue families for any one of four main reasons:

1. They weren’t paid overtime.

Minimum wage requirements count toward the first 40 hours a week, but beyond that, you may be expected to pay time and a half, according to attorney Nance L. Schick. Even if the total for the week stays under 40 hours, “some states might also require overtime pay after eight hours in one day.”

If your hired caregiver is living on-site and regularly helping out with your parent beyond an eight-hour shift, your payments need to account for your state’s overtime pay laws.

2. They weren’t paid the legal wage.

According to Schick, this is a common issue. “Most [families] pay what they think are ‘good salaries’ and provide food and lodging for their caregivers, but they must ensure the value of the food, lodging, wages, and other perquisites add up to minimum wage,” she says.

Your idea of a good salary doesn’t matter if it doesn’t match up with what the law requires. If a home care aide realizes they’re not making as much as they’re legally entitled to, you could end up in hot water.

3. They suffered harassment on the job.

Some states have laws that protect aides from harassment on the job as well. Hopefully, your family knows better than to mistreat an employee this way — for moral reasons as much as legal ones — but if a hired caregiver does suffer harassment at your hands (or those of your parent or senior loved one), you could end up in court over it.

4. They suffered an injury on the job.

When you hire a home care aide as an employee, in general you become responsible for all the obligations business owners take on for their employees. That includes worker’s compensation if your hired caregiver gets hurt while caring for your loved one.

Schick had a client hit with a lawsuit of this type after firing a caregiver. “This terminated companion alleged that she was injured while walking with the 90-something-year-old woman, who used a wheeled walker.” Even though the woman and her family never knew about the purported injury until they learned about the lawsuit, they were stuck defending the claims in court.

If a court rules in favor of the caregiver, the damages could be considerable. In New York, where Schick practices, families can be required to pay the costs of medical expenses and lost earnings, as well as additional penalties if they don’t have the required insurance.

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“One year of penalties can be as high as $73,000, and many of these caregivers are employed for several years before they file claims,” Schick says.

Few families can afford that kind of cost.

Being sued by a hired caregiver is avoidable. You can take a few smart steps to protect your family long before it gets to the point of a lawsuit:

1. Get disability insurance and worker’s compensation coverage.

“Most homeowner and renter insurance policies exempt full-time domestic workers from coverage; they need separate worker’s compensation coverage,” Schick says. Not having the required insurance coverage is against the law. It not only means that you won’t be protected in the case of a lawsuit, but it could also mean you face huge penalties for the amount of time a caregiver was employed that you didn’t have insurance.

This is a simple but extremely important step to take before you hire a caregiver on your own.

2. Hire through an agency.

This removes much of the liability from your shoulders, but it doesn’t get you off the hook entirely. You have to make a point of asking any agency you work with if their caregivers are employees of the agency. Schick recommends even going so far as to request copies of the certificates of insurance for disability and worker’s compensation from any agency you work with.

Cade Parian, a personal injury attorney, warns that even with an agency, an “in-home caregiver can sue for additional damages, known as a third-party claim.” Your family could still end up named in a suit if the caregiver felt they could prove negligence on your family’s behalf.

Nonetheless, going through an agency is generally a safer choice than hiring a caregiver on your own. If you have trouble finding an agency that meets your needs and you decide you’d really prefer to hire a caregiver directly, then it’s absolutely crucial that you follow the other steps on this list.

3. Keep records of any issues that arise.

If you do experience issues with your hired caregiver, document them as they arise. If things get contentious and you end up having to let them go, having a date and note of every incident that occurred puts you in a stronger position to defend yourself.

Hopefully, it never comes to that, but you want to be prepared if it does.

4. Meet with an accountant.

Employing a domestic worker also comes with certain tax responsibilities that vary from state to state.

Understanding how to classify your hired caregiver — and what to pay and when — is confusing for most of us who don’t have an accounting background. An accountant can set you straight and make sure you navigate your payment process and taxes appropriately.

Talk with a Senior Living Advisor

5. Meet with an attorney.

Find an attorney that has worked with domestic employment cases before. You need a full understanding of all the state laws around hiring domestic workers to be sure you stay on the right side of them. An attorney can advise in the right steps to take to make sure everything’s aboveboard with your hire and how you treat them.

6. Pay hourly.

“I would not recommend offering a salary to prospective caregivers,” says attorney Joseph D. Kamenshchik.

If you pay a salary, you may be tempted not to track the specific hours worked. “If the weekly salary, when broken down by hours worked, doesn’t fully satisfy minimum wage and/or overtime obligations, legal trouble is right around the corner,” Kamenshchik explains.

In addition to paying a caregiver back the extra money you owe, you could be stuck with paying additional damages, lawyer’s fees, and interest. Making it an hourly position from the start is a much safer bet.

7. Track the time your caregiver is working.

This is a companion tip to paying hourly. You have to make sure you know how many hours your caregiver is working and establish a system for tracking their time every day.

This could be a simple time sheet that your caregiver signs off on, or you could look into one of the many time tracking apps on the market. You want a record of the hours worked each day that both of you can access and agree on.

Many families hire in-home caregivers without ever dealing with a lawsuit. The prospect of things going bad shouldn’t scare you off from investing in the care your loved one needs. As you and your family explore options for hiring a caregiver, consider getting in touch with one of A Place for Mom’s Senior Living Advisors. They can offer advice on every stage of your senior living search, all at no cost to you.

Sources:

Kamenshchik, J. (2018). Personal communication [Personal interview].

Parian, C. (2018). Personal communication [Personal interview].

Schick, N. (2018). Personal communication [Personal interview].

The information contained in this article is for informational purposes only and is not intended to constitute legal advice or create an attorney-client relationship between A Place for Mom and the reader. Always seek the advice of your attorney with respect to any particular legal matter, and do not act or refrain from acting on the basis of anything you have read on this site. Links to third-party websites are only for the convenience of the reader; A Place for Mom does not endorse the contents of the third-party sites.