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Filed 6/24/14 Woodruff v. County of San Diego In-Home Supportive Services Public Authority CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA


DEBIE WOODRUFF et al.,
Plaintiffs and Appellants,
v.
COUNTY OF SAN DIEGO IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY,
Defendant and Respondent.


D062180

(Super. Ct. No. 37-2008-00096957- CU-OE-CTL)



APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn and Lorna A. Alksne, Judges. Affirmed in part; reversed in part.


Law Offices of David J. Gallo and David J. Gallo for Plaintiffs and Appellants.

Thomas E. Montgomery, County Counsel, and William H. Songer, Deputy County Counsel, for Defendant and Respondent.

I

INTRODUCTION



The In-Home Supportive Services (IHSS) program is a Medi-Cal based public assistance program that provides domestic, paramedical and personal care services to qualified aged, blind or disabled persons who cannot safely remain in their own homes without such services (recipients). (Welf. & Inst. Code, §§ 12300, 12300.1.)1 In San Diego County, the IHSS program is administered through a public entity (Public Authority). Its governing board is the San Diego County Board of Supervisors.

Debie Woodruff, Ollie Katrina Baptiste and Miriam St. Germaine2 (collectively, Appellants) provided in-home supportive services to recipients through Public Authority. They initiated or joined a class action suit against Public Authority for unpaid wages and overtime under Labor Code section 1194, claiming that they, and members of their class, had not been paid for all hours worked and further claiming that they were entitled to hourly wages for time spent attending an orientation, completing a mandatory background check, and for noncommute work-related travel time. Appellants posited that they were not paid for all hours worked because Public Authority retroactively reduced the number of authorized hours if the recipient died before the end of the calendar month. When that happened, the provider was not paid for the hours that he or she had already worked in excess of the retroactively reduced hours. In addition, Public Authority capped the number of hours that a provider could work for a recipient in the first two weeks of a month at 60 percent of the total number of hours that were authorized for the month (60 percent rule). Appellants maintained that as a result of the retroactive application of this rule, they had not been paid for the full number of hours that they had worked.

Appellants contend that the trial court erred by sustaining Public Authority's demurrer to Appellants' claims for unpaid overtime wages on the ground that Public Authority, as a public entity, is exempt from subject wage and hour statutes and regulations; denying their requests for leave to amend the complaint to add claims for expenses for completing mandatory background checks; and granting Public Authority's motion for summary judgment on their claim for compensation for attending an orientation program. Appellants also assert that the trial court erroneously excluded evidence of a provider's travel time between recipients' homes and erred in instructing the jury concerning the definition of "authorized services."

We conclude that the trial court did not err when it determined that Public Authority is an employer of IHSS providers. However, the court erred as a matter of law when it determined that Public Authority is not subject to Labor Code section 510, which governs compensation for overtime hours, and Labor Code section 2802, which governs compensation for expenditures or losses incurred by an employee in direct consequence of the discharge of his or her duties, and therefore abused its discretion when it sustained Public Authority's demurrer without leave to amend to Appellants' claim for overtime wages and compensation for expenses incurred on behalf of a recipient.

We also conclude that the trial court did not err when it denied Appellants' motion for leave to file a claim for compensation and reimbursement for time spent and expenses incurred in completing mandatory background checks and reviewing written orientation materials as required under section 12301.24. Further, the trial court did not err in granting Public Authority's motion for summary adjudication on the issue of compensation for attending an orientation program, prior to the enactment of section 12301.24 (pre-2009 orientation), and in excluding evidence of Appellants' travel time between recipients' homes. However, the court erred in denying Appellants' request to amend the complaint to add a claim for compensation for attending an orientation and completing the enrollment process in person after the enactment of section 12301.24, which imposed this requirement only on prospective providers and not current providers.

Finally, we conclude that the trial court erred when it denied Appellants' request to instruct the jury that Appellants were entitled to be paid for every hour worked performing authorized services, including "wait time," and instead instructed the jury that Appellants were entitled to compensation only for the time spent actually performing authorized services. The instructional error is not harmless with respect to any unpaid hours claimed for attending to a dying recipient and those hours worked that were not paid because Public Authority retroactively reduced the recipient's approved hours. However, an "hours worked" instruction was not required for time that St. Germaine spent caring for a client's service dog because this is not an authorized service under the relevant IHSS statutes. Accordingly, we affirm in part and reverse in part.

II

FACTUAL AND PROCEDURAL BACKGROUND



In November 2008, Woodruff filed a class action complaint claiming that Public Authority engaged in systematic violations of applicable provisions of the Labor Code and wage orders issued by the California Industrial Welfare Commission (IWC). The complaint sought recovery of unpaid wages, including overtime compensation and payment of the minimum wage for all hours worked, plus prejudgment interest, attorney fees and costs. (Labor Code, § 1194.)

Public Authority demurred to the complaint on the grounds that it is not the plaintiffs' employer, and that even if it is their employer, as a public entity, it is immune from Labor Code and regulatory wage and overtime requirements. Woodruff filed a first amended complaint (FAC) that added allegations that when a recipient of IHSS died or otherwise became ineligible to receive in-home supportive services during the month, Public Authority would retroactively reduce the number of authorized hours for that month and as a result, had not paid providers for all hours worked during those months. The amended complaint also alleged that Public Authority had not paid providers for overtime hours, as required under statutory and regulatory provisions, and had not paid providers the minimum wage for each hour worked, including for time spent in mandatory training and orientation, and traveling between work sites during the work day.

The trial court3 ruled that Public Authority is Appellants' employer. However, the court sustained Public Authority's demurrer on Appellants' claims that Public Authority had violated statutory and regulatory requirements for overtime compensation, minimum wage and penalty wage requirements, and that its practice of retroactively prorating the recipient's eligible hours, without regard to the hours that the provider had already worked, violated applicable minimum wage laws.

The trial court certified the class as those persons who worked as providers of IHSS from November 26, 2005 to January 29, 2009, and who had been required to attend a training/orientation session in order to be listed as a provider on the IHSS registry (Registry) and were not compensated for attending the session.

In September 2010, Woodruff filed a motion for leave to file a second amended complaint (SAC) to add a claim seeking reimbursement from Public Authority for job-related expenses, including expenses incurred for fingerprinting and background checks, and also seeking payment of minimum wage for all hours worked. Woodruff also sought to add a claim for compensation and reimbursement for noncommute travel time, including time spent shopping or running errands for a recipient, and time spent accompanying and transporting a recipient to medical appointments. The court denied the motion for leave to amend.

In May 2011, the trial court granted Public Authority's motion for summary adjudication on the claim that it had violated minimum wage laws by not compensating providers for attending an orientation. This ruling disposed of the only claim for which the class had been certified.

A jury trial on the issue of whether Public Authority had paid minimum wage to the Appellants for all hours worked was held in March 2012.4 Albert Sayles, the executive director of the Public Authority, testified that providers were paid for each authorized hour worked within the statutory limits. The county social worker assessed each recipient's needs and determined, on a task-by-task basis, the number of participant hours that would be authorized. Authorized tasks included meal preparation, respiration care, bathing, dressing, housekeeping, yard hazard abatement, bowel and bladder care, feeding, ambulation, and repositioning if bedridden. Services for companionship or sitting with a recipient were never authorized. Public Authority did not control the county social worker's assessment of the recipient's needs.

Sayles testified that whenever a recipient became ineligible for IHSS, whether by death, hospitalization, institutionalization, or other circumstances, the hours approved for the recipient for that month were automatically recalculated to reflect ineligibility for part of the month. Sayles acknowledged that it was possible that if a recipient passed away, the provider may have already worked more hours than were retroactively authorized. In that event, the county social worker had the authority to adjust the recipient's approved hours to authorize payment for all hours that the provider had actually worked for that recipient. If the social worker did not approve the hours, Public Authority could not pay the provider for the hours worked in excess of the reduction in authorized hours.

Woodruff testified that when she sought employment as an IHSS provider in 2004, she attended an orientation, filled out a form for a background check and was fingerprinted. IHSS personnel told her that once she was approved, she would be placed on Public Authority's Registry and her name would be provided to IHSS recipients.5

In the summer of 2008, Woodruff was hired by the family of Lucille C.6 Lucille was 97 years old and in failing health. She was living with her granddaughter, Adele C. Woodruff provided authorized in-home supportive services to Lucille, including meal preparation and cleanup, laundry, maintenance of her respiration equipment, treatment of bedsores, bowel and bladder care, and feeding, bathing, dressing and grooming.

The social worker authorized 143.6 hours of services for Lucille in September 2008. Woodruff worked 48 hours during the first pay period in September. When she received her paycheck, her time card stated that there were 95.6 authorized hours remaining for the second pay period in September. When a family member from out of state who had been helping with Lucille's care returned home, Adele, who worked full time, requested that Woodruff not leave Lucille alone during the day.

Woodruff testified that because Lucille had bed sores, she repositioned Lucille every half hour. Woodruff monitored Lucille's oxygen equipment and breathing, checked frequently for soiling, dampened Lucille's mouth, made smoothies and tried to feed her, kept her as hydrated as possible, changed her gowns, administered pain medications, and read to Lucille while sitting and monitoring Lucille's condition, trying to keep her comfortable. Lucille died on September 22.

Woodruff submitted a time card to Public Authority for 72 hours, stating that she had worked 12 hours a day for six days. She was paid for only 35 hours. The social worker told Woodruff that the number of authorized hours for September had been prorated according to the date of Lucille's death. Accordingly, Woodruff was paid for only 35 hours.

Lucille's granddaughter, Adele, testified that Woodruff cared for Lucille when no family member or hospice volunteers were available. Adele kept track of Woodruff's time. Her calendar notes showed that in the second half of September, Woodruff worked nine and a half hours on September 16, ten and a half hours on the 17th, eight and a half on the 18th, and five and a quarter hours on the 19th, for a total of 333/4 hours. Woodruff's time sheet showed that she had worked 12 hours every day from September 16 through 21. Adele acknowledged that she had signed Woodruff's time sheet for 72 hours, certifying that it was true, accurate and complete.

Ollie Katrina Baptiste testified that she worked for Raymond S. from 2007 to 2010. Baptiste assisted Raymond with cleaning, laundry, shopping, errands, personal care, and medical appointments. In June 2009, Baptiste worked 10 hours for Raymond but misplaced her time sheet. She personally delivered a replacement time sheet to the IHSS office. When Baptiste later inquired as to why she had not received payment, Public Authority told her that her time sheet had not been processed yet. They never told her that they did not have the time sheet. Baptiste was never paid for the 10 hours that she worked for Raymond in June 2009. In addition, when Raymond was admitted to the hospital, the social worker retroactively cut the hours that had been authorized for his care. As a result, Baptiste was not paid for 30 hours that she had worked.

Baptiste had another client, Roy K., who had suffered a stroke. She went to his home every day to make sure that he was eating. She took him to the Food Bank and tried to arrange Meals On Wheels for him. When Baptiste was not successful in obtaining additional services for Roy, she telephoned the social worker for help. According to Baptiste, the social worker did not appear to be interested. The social worker reduced the number of hours that Baptiste was authorized to work for Roy from 59 hours to nine hours per month. When Baptiste went to Roy's house to have him sign her time sheet, she found him on the floor in his underwear, covered in feces. Baptiste telephoned the social worker to inform her of Roy's condition. The social worker told Baptiste that Baptiste had been replaced by another provider. Baptiste had two time sheets for Roy for which she had not been paid because he went into assisted living and refused to sign a time sheet. The social worker would not authorize the hours and payroll was not allowed to process it. Baptiste testified that she was not paid for 10 hours in June 2009, 20 hours in March 2009, and 59 hours in May 2007. In addition, she was not paid for 10 hours (out of 20) that she had worked for a schizophrenic client, Mary P. The number of hours authorized for Mary's care was cut after Mary told the social worker that she was "fine." In all, Baptiste was not paid for 99 hours of in-home supportive services that she had provided to her clients.

Miriam St. Germaine testified that she worked for a client, Denny R., who was a quadriplegic. St. Germaine went to his house in the morning on a daily basis. She drained Denny's catheter, helped him exercise, made breakfast for him and ensured that he had lunch for the day. St. Germaine also fed Denny's service dog, Sage.

In June 2008, St. Germaine was authorized to work 50 hours a month for Denny. Denny's need for services increased significantly when his mother, who had been assisting with his care, became ill and another provider quit. St. Germaine submitted 42 hours for the first pay period in June. She was paid for 29.5 hours. The social worker informed St. Germaine that a rule prohibited payment of more than 60 percent of the total authorized monthly hours in the first half of any month.

Toward the end of the month, Denny was admitted to the hospital for treatment of a chronic infection. He was scheduled to return home a few days later. St. Germaine prepared his home for his return. She also cared for Sage because there was no one else who could take the dog. Denny passed away unexpectedly while in the hospital. St. Germaine was instructed not to put the 11 hours that she had spent taking care of Sage on her time sheet, and she did not. She was paid for 80 of the 92.5 hours that she reported she had worked in June.

Meredith McCarthy, assistant director of Public Authority, testified that authorized hours were retroactively reduced after a recipient's death. She had no reason to believe that Woodruff had been informed of that policy. Public Authority did not pay providers for any hours that they may have worked in excess of 60 percent of hours authorized for any month during the first pay period of the month. Because of this rule, St. Germaine was not paid for 12.5 hours. McCarthy had no reason to believe that providers were informed of that policy. With respect to Baptiste's claim that she was not paid for the hours that she worked for Raymond in June 2009, McCarthy testified that Public Authority did not have any record of Baptiste's June 2009 time sheet.

Vickie Molzen, the IHSS program manager, testified that the 60 percent rule was a policy of the State of California that had been in effect for at least 18 years. It was the recipient's prerogative to schedule providers. Recipients were told to be careful in allocating their hours. Molzen acknowledged that recipients were frail and that their situations could decline. If that happened, the provider or the recipient should inform the social worker that the recipient needed more hours. The social worker was authorized to make an adjustment to the 60 percent rule using a special transaction. However, hours worked in the first pay period of each month in excess of 60 percent of the total number of authorized hours for that month would not be paid unless the social worker had been informed in advance that the recipient had additional needs and had approved additional hours.

Ellen Schmeding oversaw IHSS and Adult Protective programs on behalf of San Diego County. Each recipient's hours were authorized on a monthly basis. If the social worker did not authorize hours in a particular service category, the recipient was not eligible to receive care in that category. Protective supervision services were authorized only for those recipients who had cognitive impairments. The recipient was responsible to schedule the provider's hours. Providers received notice of the recipient's monthly authorized hours on their time sheets. Most providers would realize that they could not work all of the authorized hours in the first part of the month. If the recipient passed away before signing a time sheet, the provider would not be paid unless the provider's work hours could be verified. A social worker could make an accommodation to pay the provider if the recipient died.

Janet Williams, the social worker with the San Diego County Health and Human Services Agency who had authorized 143.6 service hours for Lucille in June 2008, acknowledged that if a recipient needed additional care and then passed away, a provider might not be paid for all of the hours that the provider had worked for that recipient.

The trial court rejected Appellants' request to instruct the jury that Appellants were entitled to minimum wage for each hour that they had worked providing authorized services, including any waiting time. Instead, the trial court instructed the jury that "[o]nly those services that I have described as supportive services are authorized for payment through the IHSS program."

On a special verdict form, the jury was asked to decide whether each plaintiff had performed work for Public Authority. If the answer was "yes," the jury was to determine whether the plaintiff had been paid at least the minimum wage by Public Authority "for each hour worked performing authorized services." If the answer was "no," the jury was to determine the number of hours that the plaintiff had not been paid for authorized services.

The jury determined that each of the Appellants had performed work for Public Authority and that they had each been paid at least the minimum wage for each hour worked performing authorized services. The court entered judgment on the jury verdict in favor of Public Authority.

III

DISCUSSION



A. Overview of the IHSS program

The IHSS program is designed to provide supportive services7 to aged, blind, or disabled persons who are unable to perform the services themselves and who cannot safely remain in their homes or abodes of their own choosing unless these services are provided. (§ 12300, subd. (a); see Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 921-924 (Guerrero) [detailing the statutory history of the IHSS program].) "The program compensates persons who provide the services to a qualifying incapacitated person." (Basden v. Wagner (2010) 181 Cal.App.4th 929, 931 (Basden).)

Each county is required to act as, or establish, an employer for IHSS providers for purposes of collective bargaining and other applicable state or federal laws. (§ 12302.25, subd. (a).)8 A county may hire homemakers and other IHSS personnel, or may contract with a city, county, or city or county agency, a local health district, a voluntary nonprofit agency, a proprietary agency, or an individual, or make direct payment to a recipient for the purchase of services. (§ 12302.) At its option, a county board of supervisors may elect either to contract with a nonprofit consortium, or establish, by ordinance, a public authority, to provide for the delivery of in-home supportive services. (§ 12301.6, subd. (b).)

In 2001, San Diego County created a Public Authority to provide for the delivery of in-home supportive services. (San Diego County Ord. No. 9345 added art. IIIb to the San Diego County Admin. Code, eff. July 19, 2001.) The IHSS Public Authority is a corporate public body that exercises public and essential governmental functions and has all necessary powers and authority to carry out the delivery of in-home supportive services. (§ 12301.6, subd. (b)(2)(B).)

The Legislature requires that any IHSS public authority provide all of the following functions: assist recipients in finding IHSS personnel through the establishment of a registry; investigate the qualifications and background of potential personnel; and establish a referral system under which IHSS personnel shall be referred to recipients. In addition, public authorities are to provide for training for providers and recipients; perform any other functions related to the delivery of in-home supportive services; and ensure compliance with the personal care option under applicable federal law. (§ 12301.6, subd. (e).)

Any public authority is deemed to be the employer of personnel who are referred to recipients of IHSS, for the purposes of collective bargaining over wages, hours, and other terms and conditions of employment. Recipients retain the right to hire, fire and supervise the work of any IHSS personnel who provide services to them. (§ 12301.6, subd. (c)(1).) In selecting providers to perform services, preference shall be given to any qualified provider who is chosen by any recipient of personal care services. (§ 12304.1.) Recipients of IHSS may elect to receive services from providers who are not referred to them by the public authority. Those providers shall be referred to the public authority for the purposes of wages, benefits, and other terms and conditions of employment. (§ 12301.6, subd. (h).)

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