Guerrero v. Superior Court (213 Cal. App. 4th 912, 2013)

Opinion

KLINE, P. J.

INTRODUCTION

Petitioner Adelina Tapia Guerrero was employed to provide in-home support services (IHSS) to eligible recipients in Sonoma County (County) under the In-Home Support Services Act. (Welf. & Inst. Code, § 12300 et seq.) She was never paid for any of the services she rendered to program recipient Alejandra Buenrostro from November 4, 2008, through January 29, 2009, despite a comprehensive scheme of federal and California statutes, implemented within County through enactment of local ordinances that spell out the responsibilities of County and the Sonoma County In-Home Supportive Services Public Authority (Public Authority) for establishing and monitoring IHSS providers’ wages, hours, and conditions of employment. She contends that County and Public Authority were her “joint employers” with Buenrostro for purposes of her federal and state wage and hour claims. The Sonoma County Superior Court rejected this contention, sustaining without leave to amend the demurrer of real parties in interest Jo Weber, as Director of the Sonoma County Department of Human Services, and Michael Humphrey, as manager of the Public Authority, as to her causes of action for unpaid wages and overtime under the Fair Labor Standards Act of 1938 (ELSA) (29 U.S.C. § 201 et seq.), California statutes (Lab. Code, §§ 1182.12, 1194, 1194.2, 1197; Welf. & Inst. Code, §§ 12301.6, subd. (c)(1), 12302.25) and Industrial Welfare Commission (IWC) wage order No. 15-2001 (Cal. Code Regs., tit. 8, § 11150 et seq.).

Guerrero seeks extraordinary relief from the order. She contends the superior court erred in determining that real parties in interest County and Public Authority were not her “employers” or “joint employers” with other defendants for purposes of her federal and state wage and hour claims and by failing to consider whether real parties in interest acted “in the interest of an employer in relation to [her]” under the FLSA. (29 U.S.C. § 203(d).) She further contends that the superior court erred in sustaining real parties in interest’s demurrer to her claims for unpaid wages, based upon its determinations that her job classification was exempt from federal and state wage and hour laws and that the California wage and hour laws upon which she relied did not apply to public entities. Underlying these contentions is Guerrero’s assertion that disputed material facts exist as to all of these issues, so that the sustaining of demurrers to her wage and hour claims was error.

We shall conclude the superior court erred in sustaining the demurrer to Guerrero’s federal and state wage and hour claims.

FACTS AND PROCEDURAL BACKGROUND

A. The first amended complaint

On February 22, 2011, Guerrero filed the instant first amended complaint naming as defendants real parties in interest County and Public Authority and defendants Buenrostro and Sherry Amezcua. The complaint alleged as follows: Buenrostro was disabled and a recipient and a consumer of IHSS services as provided in an interagency agreement between County and Public Authority and a memorandum of understanding between the Public Authority and Service Employees International Union (SEIU), effective October 1, 2007, through September 30, 2009. County and Public Authority authorized Buenrostro and Amezcua to hire and engage an IHSS provider and they engaged Guerrero to provide IHSS services from November 4, 2008, through January 29, 2009. Guerrero provided services seven days a week, for seven hours a day and had worked no fewer than 501 hours regular time and not less than 87 hours of overtime. Guerrero alleged she performed general household work exceeding 20 percent of her total weekly hours worked. Guerrero provided services to Buenrostro at all times under the supervision and direction of Amezcua. Buenrostro, Amezcua and real parties in interest County and Public Authority failed to pay her for the personal services she rendered to Buenrostro and refused to pay minimum wages and overtime premium wages owed.

The first amended complaint further alleged that each defendant (County, Public Authority, Buenrostro and Amezcua) employed Guerrero and either directly or indirectly exercised control over her wages or hours or conditions of employment or all of the foregoing. It further alleged that in failing to pay Guerrero minimum wages and overtime premium wages owed for her personal services, all defendants, including real parties in interest, had violated the federal FLSA (29 U.S.C. § 201 et seq.), California statutes, including Labor Code section 1194, and IWC wage order No. 15-2001. In addition to federal and state wage and hour claims, the complaint also contained a cause of action for breach of a contract entered into by Buenrostro and Amezcua with County and Public Authority, to which Guerrero alleged she was a third party beneficiary, and for breach of the collective bargaining agreement entered into by County and Public Authority with SEIU and providers of IHSS in Sonoma County, to which Guerrero alleged she was a third party beneficiary.

B. Demurrer

County and Public Authority filed a joint demurrer to the complaint, in which they argued: (1) Guerrero’s federal wage and hour claims failed to state facts sufficient to constitute a cause of action against them because they were not her employer for purposes of her FLSA wage and hour claims; (2) alternatively, Guerrero’s federal wage and hour claims failed because her job was exempt from the FLSA minimum wage and overtime provisions; (3) Guerrero’s claims under the Labor Code failed because real parties in interest were not her employer for purposes of state wage and hour claims; and (4) alternatively, that her claims under state law failed because the relevant portions of the Labor Code did not apply to public entities such as real parties in interest. Real parties in interest also argued the breach of contract cause of action failed because Guerrero failed to comply with the requirements of the Government Claims Act. (Gov. Code, § 915.)

On July 18, 2011, the trial court filed its order sustaining real parties in interest’s demurrer without leave to amend as to all federal and state statutory claims for minimum wages and overtime premium wages. The court overruled the demurrer as to the contractual cause of action, finding the complaint had adequately pleaded excuse from the Government Claims Act.

C. Writ proceedings

On September 19, 2011, Guerrero filed a writ petition in this court, seeking extraordinary relief. On November 23, 2011, we issued an order to show cause why the relief requested in the petition should not be granted. On that date we also granted Guerrero’s request for judicial notice of certain provisions of the State Department of Social Services Manual of Policies and Procedures: Social Services Standards, Service Program No. 7: In-Home Supportive Services, pp. 50-115 (hereafter, DSS Manual) and of the State Department of Social Services County Fiscal Letter No. 10/11-43 (Dec. 13; 2010) and its attachment relating to funds allocated to counties for fraud investigations and program integrity activities.

Real parties in interest filed their answer and return on January 12, 2012. Guerrero’s traverse was filed February 2, 2012. We granted requests of the California State Association of Counties to file an amicus curiae brief in support of real parties in interest and to the National Employment Law Project (NELP) to file an amicus curiae letter in support of Guerrero. Petitioner’s answer to the amicus curiae brief filed by California State Association of Counties was filed on February 14, 2012, and oral argument was held.

DISCUSSION

The threshold issue here is whether County, Public Authority, or both of them were Guerrero’s “employer” for purposes of federal and state wage and hour laws. To assist in that determination, we describe in some detail the IHSS program and its implementation in Sonoma County.

I. The IHSS Program

A. Statutory background

“IHSS is a state social welfare program designed to avoid institutionalization of incapacitated persons. It provides supportive services to aged, blind, or disabled persons who cannot perform the services themselves and who cannot safely remain in their homes unless the services are provided to them. The program compensates persons who provide the services to a qualifying incapacitated person.” (Basden v. Wagner (2010) 181 Cal.App.4th 929, 931 [104 Cal.Rptr.3d 394].) The statutory background of the IHSS program was described by the Third Appellate District in Basden v. Wagner.

“In 1973, the Legislature enacted the IHSS program to enable aged, blind or disabled poor persons to avoid institutionalization by remaining in their homes with proper supportive services. (Welf. & Inst. Code, § 12300 et seq.) [Footnote omitted.] ‘Supportive services’ are described in discrete categories, such as ‘domestic services,’ ‘personal care services,’ and ‘protective supervision,’ to name a few. [Footnotes omitted.] (§ 12300, subd. b).)[]

“The Department [(the State Department of Social Services or DSS)] promulgates regulations that implement the program, and county welfare departments administer the program under the Department’s supervision. Counties process applications for IHSS, determine the individual’s eligibility and needs, and authorize services. The county either obtains and pays the provider of the services, or it pays the recipient who hires a provider. (Miller v. Woods (1983) 148 Cal.App.3d 862, 868 [196 Cal.Rptr. 69] (Miller).)

“The total amount of services provided to any one person is limited by statute. Severely impaired recipients may receive up to 283 hours per month, or approximately 65.4 hours per week, of supportive services paid through the program. Less severely impaired recipients may receive up to 195 hours per month, or approximately 45 hours per week. (§ 12303.4.)” (Basden v. Wagner, supra, 181 Cal.App.4th at pp. 933-934.)4

The services that may be authorized through IHSS are specified in DSS Manual sections 30-757.11 through 30-757.19. (DSS Manual, § 30-757.1.) The Department must adopt regulations establishing a uniform range of services available to all eligible recipients based upon individual needs, subject to county plans developed in conformity with state law. (§§ 12301.1, 12302.) Counties evaluate the recipients based on those regulations and reassess periodically, but at least annually. (§ 12301.1) The Department, in consultation with the counties, must also “establish and implement statewide hourly task guidelines” and a standardized tool to assess recipient needs. (§ 12301.2, subd. (a); see § 12309.) Although County may authorize exceptions to the hourly task time guidelines for particular services based on factors set forth in the DSS Manual (see DSS Manual, § 30-757.1), no exception may result in the recipient’s total hours exceeding the maximum monthly limits specified (id, § 30-757.1(a)(4)).

Counties are tasked with performing “quality assurance activities,” including establishing a dedicated, specialized unit or function to ensure quality assurance and program integrity, including fraud detection and prevention in the provision of services; performing routine reviews of supportive case services to ensure there are accurate assessments of needs and hours; developing, with the state, policies, procedures, timelines, and instructions under which counties will receive, resolve and respond appropriately to claims data match discrepancies or other information that indicates potential overpayments to providers or recipients or third party liability; monitoring the delivery of supportive services to detect and prevent potential fraud by providers, recipients and others to maximize recovery of overpayments. (§ 12305.71, subds. (a), (b), (c).) Such monitoring may include unannounced home visits to a recipient’s home to verify the receipt of services. (§ 12305.71, subd. (c)(3)(A), (B).)

B. Sonoma County’s implementation of the IHSS program

“The California Legislature set eligibility standards and methods by which counties could provide in-home care. [(E.g., §§ 12302, 12304.)] The counties were responsible for the day-to-day operation of the programs.” (Bonnette v. California Health and Welfare Agency (9th Cir. 1983) 704 F.2d 1465, 1467 (Bonnette).) “A county may deliver services under the IHSS program by (1) hiring in-home supportive personnel in accordance with established county civil services requirements, (2) contracting with a city, county, city or county agency, a local health district, a voluntary nonprofit agency, a proprietary agency or an individual, or (3) making direct payment to a recipient for the purchase of services. (Welf. & Inst. Code, § 12302.)” (SEIU, supra, 225 Cal.App.3d at p. 765; see Bonnette, supra, at p. 1467.) A county board of supervisors may also elect to either “[c]ontract with a nonprofit consortium to provide for the delivery of in-home supportive services” (§ 12301.6, subd. (a)(1)) or “ [ejstablish, by ordinance, a public authority to provide for the delivery of in-home supportive services.” (§ 12301.6, subd. (a)(2), italics added.)

Pursuant to section 12301.6, in 2001, the Sonoma County Board of Supervisors chose to establish Public Authority to provide for the delivery of services. (Sonoma County Mun. Code, art. XXIV, §§ 2-358 through 2-360 (Ord. No. 5289 § 1 (part), 2001.) The County Board of Supervisors is the governing board of Public Authority. (Id., § 2-361.) The board may abolish Public Authority by repealing the article establishing it. (Id., § 2-371.)

Public Authority was established as a separate entity from County and was given all powers “necessary and convenient” to carry out the powers conferred by section 12300 et seq. and the Sonoma County Municipal Code, “including the power to contract for services pursuant to Welfare and Institutions Code [sections 12302 and 12302.1 . . . .” (Sonoma County Mun. Code, § 2-364, subd. (b).) Consequently, Public Authority has the power to determine the method of delivery of IHSS services to recipients and to contract with appropriate entities or individuals to deliver those services. (Sonoma County Mun. Code, § 2-364, subd. (b).) Public Authority also has the authority to provide for delivery of services by direct payment to a provider chosen by the recipient. (§ 12301.6, subd. (d).)

Public Authority was charged with implementing the goals and objectives of section 12301.6, including, but not limited to (1) establishing a registry to provide assistance to recipients in finding providers; (2) investigating the qualifications and background of potential providers; (3) establishing a referral system under which providers shall be referred to recipients; (4) providing for training for providers and recipients; (5) performing any other functions related to the delivery of in-home supportive services; and (6) assuring that the requirements of the personal care option under federal law are met. (§ 12301.6 (a)-(e); Sonoma County Mun. Code, § 2-363, subds. (a)-(c).)

Recipients may elect to receive services from providers who are not referred to them by the Public Authority. However, those providers must be referred to the Public Authority “for the purpose of wages, benefits, and other terms and conditions of employment.” (§ 12301.6, subd. (h), italics added.)

At all times relevant here, Public Authority was “deemed to be the employer” of IHSS providers for purposes of collective bargaining under the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.; hereafter the MMBA.) (§ 12301.6, subd. (c)(1); accord, Sonoma County Mun. Code, § 2-364, subd. (e).) However, “[rjecipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel providing services to them.” (§ 12301.6, subd. (c)(1); see Sonoma County Mun. Code, § 2-364, subd. (e) [“Nothing in these enumerated powers shall be construed to limit or interfere with the rights of IHSS recipients to hire, fire and supervise the work of any worker providing services to them.”].)

Public Authority is not responsible for (1) authorizing services for a recipient; (2) determining a recipient’s need for services, the level and quality of services required, or the eligibility of recipients; (3) conducting assessments of the need for services; and “[germinating the recipient’s participation in the IHSS program.” (Sonoma County Mun. Code, § 2-363, subd. (d).) These services and functions are “the exclusive responsibility of the [C]ounty of Sonoma.” (Ibid.)

County, therefore, makes the threshold determination whether an individual is financially eligible for IHSS services, the level of services required, and the number of hours of service to which the recipient is entitled under the statutes and regulations. County also enters the provider’s timesheet into a database maintained by the state. The state issues the checks to the providers. County also “[a]uthorize[s] the disbursement of all funds paid ... by: [][] (1) [Reviewing all time sheets prior to entry of time sheet data into the system to ensure consistency between hours reported and hours authorized [and by] [][] (2) [Reviewing any significant discrepancies between hours reported and hours authorized to determine the reason and take corrective action as indicated.” (DSS Manual, § 30-769.241(c)(l), (2).) The state has the responsibility for the state payroll system, unemployment insurance, and workers’ compensation for service providers. (§§ 12301.6, subd. (i), 12302.2; Sonoma County Mun. Code, § 2-364, subd. (f).) Where a county provides for direct payment to a provider chosen by a recipient, as County does here, the state either performs or assures the performance of all the recipient’s obligations as an employer, relating to unemployment compensation, disability benefits, workers’ compensation, federal and state income tax and federal old-age survivors and disability insurance benefits. (§ 12302.2.)

Public Authority is “deemed not to be the employer of in-home supportive services personnel referred to recipients under this section for purposes of liability due to the negligence or intentional torts of the in-home supportive services personnel.” (§ 12301.6, subd. (f)(1), italics added; see Sonoma County Mun. Code, § 2-365, subd. (c).) Further, “[e]mployees of the public authority shall not be employees of the county for any purpose.” (§ 12301.6, subd. (b)(2)(B); see Sonoma County Mun. Code, § 2-365, subd. (c).) Both the County and the state are “immune from any liability resulting from its implementation of Welfare and Institutions Code Sections 12301.6 et seq. in the administration of the In-Home Supportive Services.” (Sonoma County Mun. Code, § 2-365, subd. (d); see § 12301.6, subd. (f)(3).)

H. Standard of Review

This action arises on the superior court’s sustaining of real parties in interest’s demurrer to Guerrero’s causes of action for alleged violation of the FLSA and state wage and hour laws. Our standard of review is well established.

We review orders sustaining demurrers de novo. (Sheppard v. North Orange County Regional Occupational Program (2010) 191 Cal.App.4th 289, 297 [120 Cal.Rptr.3d 442] (Sheppard).) “[F] olio wing the sustaining of a demurrer without leave to amend, we assume the truth of all properly pleaded facts. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 [40 Cal.Rptr.3d 205, 129 P.3d 394]; [citation].) We also accept as true all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403 [44 Cal.Rptr.2d 339]; [citation].)” (Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 633, fn. 3 [79 Cal.Rptr.3d 383] (Curcini).) We “liberally construe [the properly pleaded allegations of a challenged complaint] to achieve ‘ “ ‘substantial justice’ ” ’ among the parties. (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118 [51 Cal.Rptr.2d 251, 912 P.2d 1198].)” (Sheppard, at p. 297.) If the trial court sustains a demurrer without leave to amend, we determine whether or not the plaintiffs could amend the complaint to state a cause of action. (Curcini, at p. 637.) The plaintiffs bear the burden of proving the trial court abused its discretion in denying leave to amend. (Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274, 1282 [142 Cal.Rptr.3d 700], quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) “ ‘We do not review the reasons for the trial court’s ruling; if it is correct on any theory, even one not mentioned by the court, and even if the court made its ruling for the wrong reason, it will be affirmed. [Citations.]’ (Coastside Fishing Club v. California Resources Agency (2008) 158 Cal.App.4th 1183, 1190-1191 [71 Cal.Rptr.3d 87].)” (Curcini, at pp. 637-638.)

III. Real Parties in Interest as “Employers” or “Joint Employers” Under the FLSA

In Basden v. Wagner, supra, 181 Cal.App.4th 929, the Court of Appeal recognized that “[t]he IHSS statutes treat providers as employees for some purposes, but not for all.

“IHSS providers work pursuant to various arrangements. Some are civil service employees of a county; some are employees of an entity that contracts with the county; some contract directly with the county or authorized entity; some are referred to the recipient by the authorized entity; and some contract directly with the recipient. (§§ 12301.6, 12302, 12302.1, 12302.25.)

“Each county is required to act as an ‘employer,’ or to establish an ‘employer,’ for IHSS providers for purposes of the state public employee-employer relations laws. (§ 12302.25, subd. (a).)

“Where a provider or a recipient receives direct payment from the county, the state is responsible for performing for the recipient a number of legal obligations an employer has for its employees, such as those related to unemployment compensation, unemployment compensation disability benefits, workers’ compensation, federal and state income tax, and federal old-age survivors and disability insurance benefits. (§ 12302.2.) These ‘employer’ duties suggest providing IHSS full time could be considered an employment.

“However, providing IHSS-funded care is not an employment for all purposes. By statute, the entity that is deemed the provider’s employer for employer-employee relations laws is expressly not deemed to be the provider’s employer for purposes of liability due to the provider’s negligence or intentional torts. (§ 12301.6, subds. (c)(1), (2)(A), (f)(1).)

“These marked differences in treatment by the IHSS statutes indicate that, at most, the Legislature defined IHSS providers as employees for limited circumstances, but undisputedly not for all circumstances.” (Basden v. Wagner, supra, 181 Cal.App.4th at p. 940, italics omitted.)

Guerrero contends the trial court erred in sustaining the demurrer to her cause of action for violation of the FLSA (29 U.S.C. § 201 et seq.). She argues that she sufficiently pled protected employee status, that the real parties in interest were her employers for purposes of FLSA wage protections, and that the trial court abused its discretion by making factual determinations as to the circumstances of the employment relationship in finding that real parties interest were not her employers.

A. Bonnette

In 1983, the Ninth Circuit held that “under the FLSA’s liberal definition of ‘employer,’ ” the state and counties were employers of providers of in-home support services under California’s IHSS program. (Bonnette, supra, 704 F.2d at p. 1470.) Treating the “ultimate question of whether a party is an ‘employer’ as a legal issue” (id. at p. 1469), the court of appeals concluded that state and county welfare agencies “exercised considerable control over the nature and structure of the employment relationship. They also 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].” (704 F.2d at p. 1470.)

“Under the FLSA, ‘employer’ is defined as follows: [][] ‘ “Employer” includes any person acting directly or indirectly in the interest of an employer in relation to an employee . . . .’ 29 U.S.C. § 203(d). The definition of ‘employer’ under the FLSA is not limited by the common law concept of ‘employer,’ and is to be given an expansive interpretation in order to effectuate the FLSA’s broad remedial purposes. [Citation.] The determination of whether an employer-employee relationship exists does not depend on ‘isolated factors but rather upon the circumstances of the whole activity.’ Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1477, 91 L.Ed. 1772 (1947). The touchstone is ‘economic reality.’ [Citation.]

“Two or more employers may jointly employ someone for purposes of the FLSA. [Citation.] All joint employers are individually responsible for compliance with the FLSA. 29 C.F.R. § 791.2(a) (1981). Regulations issued by the Department of Labor give the following examples of joint employment situations: [][] ‘(2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or [1] (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer.’ 29 C.F.R. § 791.2(b) (footnotes omitted). The district court used a joint employment theory to find that the appellants were employers of the chore workers.” (Bonnette, supra, 704 F.2d at pp. 1469-1470.)

The Ninth Circuit looked to the definition of employer under the FLSA and looked in particular to four factors commonly used by the courts to evaluate the “ ‘economic realit[y] of the work relationship’ ”—“ ‘whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.’ In varying combinations, these factors have been considered by other courts for the same purpose. [Citations.] More important, these four factors are relevant to this particular situation.” (Bonnette, supra, 704 F.2d at pp. 1469-1470.)

Bonnette embraced the four factors as providing “a useful framework for analysis in this case,” while acknowledging they were “not etched in stone and will not be blindly applied. The ultimate determination must be based ‘upon the circumstances of the whole activity.’ Rutherford, 331 U.S. at 730, 67 S.Ct. at 1477.” (Bonnette, supra, 704 F.2d at p. 1470.) Bonnette applied the four factors to the IHSS statutoiy scheme as it existed at that time, concluding it was “undisputed that the chore workers’ wages were paid by appellants [the state and county agencies].” Regardless whether paid directly to the provider, to the recipient or in some combination, “the chore workers were paid by the appellants.” (Ibid.) It was “also undisputed that the appellants controlled the rate and method of payment, and that they maintained employment records.” (Ibid.) Further, the appellant state and county agencies “also exercised considerable control over the structure and conditions of employment by making the final determination, after consultation with the recipient, of the number of hours each chore worker would work and exactly what tasks would be performed. The recipients were responsible for the day-to-day supervision of the chore workers, but appellants intervened when problems arose which the recipient and the chore worker could not resolve. The district court found that the appellants ‘had periodic and significant involvement in supervising the chore worker’s job performance.’ ” (Ibid.)

The parties in Bonnette, supra, 704 F.2d 1465, disagreed about whether the state and county agencies had the power to hire and fire the chore workers. (Id. at p. 1470.) The Ninth Circuit pointed out that it was not the facts that were in dispute, but their characterization. “Appellants argue that it was the recipients who had the power to hire and fire, and the appellants only undertook these responsibilities when, for some reason, the recipient was incapable of carrying them out. The chore workers argue that the appellants’ power to confer the grants on the recipients was in effect equivalent to the power to hire, and the power to terminate the grants amounted to the power to terminate the chore workers’ employment. Regardless of whether the appellants are viewed as having had the power to hire and fire, their power over the employment relationship by virtue of their control over the purse strings was substantial.” (Ibid.)

Applying these factors, Bonnette found as a matter of law that the state and counties were employers of the providers. (Bonnette, supra, 704 F.2d at p. 1470.)

The structure and operation of the IHSS program informing Bonnette’s four factor analysis of the “ ‘economic realit[y]’ ” (Bonnette, supra, 704 F.2d at p. 1470) of the total employment relationship are remarkably similar to those that exist in the IHSS program as it functioned when Guerrero alleges she performed services and as it functions today:

(1) Power to hire and fire. As we have observed, the Ninth Circuit concluded in Bonnette, supra, 704 F.2d 1465, that, “Regardless of whether the appellants are viewed as having had the power to hire and fire, their power over the employment relationship by virtue of their control over the purse strings was substantial.” (Id. at p. 1470, italics added.) The same is true today.

Furthermore, although the recipient retains the right to hire a provider who has not been referred by the public authority, those providers must be referred to the public authority “for the purposes of wages, benefits, and other terms and conditions of employment.” (§ 12301.6, subd. (h), italics added.) Such requirement further supports the conclusion that County and Public Authority had substantial power over the employment relationship by virtue of their control of the purse strings and their control over the type of system they implemented to deliver IHSS program services. County even retains the authority to change the manner in which the provider payment is made and thus may “exercise direct hiring and firing control when it discerns that the work the state is paying for is not being performed in accordance with the assessment of need.” (In-Home Supportive Services v. Workers’ Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 731 [199 Cal.Rptr. 697] (In-Home Supportive Services v. WCABf, see DSS Manual, § 30-767.133 [“The county shall have the right to change from one to another of the three delivery methods outlined above [county employment, purchase of service from an agency, or purchase of service from an individual] or from payment in advance to payment in arrears” when the recipient uses his or her payment “for other than the purchase of authorized services.”].)

Real parties in interest argue vigorously, and the trial court here agreed, that amendments to the statutes implementing the IHSS program, have superseded Bonnette, supra, 704 F.2d 1465. They contend that when Bonnette was decided, the prohibition against counties hiring, firing or supervising the IHSS recipients was not found in a statute, but rather in local ordinances subject to change by the counties. Real parties in interest maintain that since 1992, the amended IHSS statutes prohibit real parties in interest from hiring, firing, supervising or controlling how many hours an IHSS provider works. Relying on sections 12301.6, subdivision (c)(1), 12302.2, subdivision (a), and 12302.5, subdivision (b), real parties in interest argue that because they are statutorily prohibited from hiring, firing, or supervising the providers, Guerrero is seeking to hold them liable for something they are statutorily prohibited from regulating. (See § 12302.25, added by Stats. 1999, ch. 90, § 6, p. 1658, eff. July 12, 1999.)

Real parties in interest’s claim that the pre-1992 prohibitions against counties hiring, firing or supervising the IHSS recipients were not statutory, but rather the result of local ordinances subject to change by the counties, is not strictly accurate. For example, section 12302.2 today reads in all respects material to this litigation, the same as it read in 1983 when Bonnette, supra, 704 F.2d 1465, was decided. Section 12302.2, subdivision (a), states that where the state or a county “makes or provides for direct payment to a provider chosen by a recipient or to the recipient for the purchase of in-home support services,” the DSS must either “perform or assure the performance of [the recipient’s obligations as an employer]” for unemployment compensation, workers’ compensation, income taxes and the like. The last sentence of section 12302.2, subdivision (a), read in 1983, as it does today; “Nothing in this section shall be construed to permit any interference with the recipient’s right to select the provider of services or to authorize a charge for administrative costs against any amount payable to or on behalf of a recipient.” (Added by Stats. 1978, ch. 463, § 4, p. 1572, eff. July 18, 1978, italics added.)

Similarly, in 1983, section 12304 provided in pertinent part, as it does today, that “[a]n individual who is eligible for services subject to the maximum amount specified . . . and who is capable of handling his or her own financial and legal affairs shall be given the option of hiring and paying his or her own provider of in-home supportive services. ... An individual who is not capable of handling his or her own financial and legal affairs shall be entitled to receive the cash payment through his or her guardian, conservator, or protective payee.” (Former § 12304, subd. (b), as amended by Stats. 1982, ch. 115, § 48, p. 366, eff. Mar. 13, 1982.)

Section 12304.1 provided in 1983, as it does today, that in the selection of providers, “preference shall be given to any qualified individual provider who is chosen by any recipient of’ IHSS personal care services. (Added by Stats. 1979, ch. 504, §5, p. 1675; Stats. 1979, ch. 1071, §5.5, p. 3787; see Historical and Statutory Notes, 74A West’s Ann. Welf. & Inst. Code (2001 ed.) foil. § 12304.1, p. 292.)

As we have stated, section 12301.6, added in 1999, authorized the counties to establish public authorities to provide for the delivery of in-home supportive services (id., subd. (a)(2)) and provided, among other things, that such public authority “shall be deemed to be the employer” of the provider for purposes of collective bargaining. (Id., subd. (c)(1).) Section 12301.6 also makes clear in the same subdivision that “Recipients shall retain the right to hire, fire, and supervise the work of any in-home supportive services personnel providing services to them.” (Id., subd. (c)(1).)

In Bonnette, supra, 704 F.2d 1465, the Ninth Circuit recognized that in the counties involved in that litigation, “[tjhe recipient was responsible for hiring and firing the chore worker” and “for the day-to-day supervision of the chore worker.” (Id. at p. 1468.) Nothing in the legislative history of the amendments to the IHSS program provisions indicates any intention of the Legislature to overturn or supersede Bonnette’s holding that under the FLSA, the state and counties were joint employers with recipients of IHSS service providers. Rather, the language relied upon by real parties in interest confirms that no change in the recipients’ then existing right to hire, fire and supervise providers was effected by the establishment of public authorities to administer the delivery of IHSS services.

(2) Determine the rate and method of payment. As was the case in Bonnette, supra, 704 F.2d 1465, the chore workers’ wages were determined and paid by the state and its agents, County and Public Authority. (See James v. Fenske (D.Colo., Mar. 1, 2012, No. 10-cv-02591-WJM-CBS) 2012 U.S.Dist. Lexis 26632.)

Although real parties in interest argue that providers were paid directly by the state, rather than by real parties in interest, it is undisputed that the state, County and Public Authority, in combination, determined the rate and method of payment. (See DSS Manual, § 30-764, “Individual Provider Compensation.”) Public Authority was authorized by County, as allowed by state statute, to engage in collective bargaining with the provider’s union over wage rates, subject to approval of the agreement by the state. (§ 12306.1, subd. (a).) Any increase in provider wages or benefits negotiated by Public Authority must be approved by both the Sonoma County Board of Supervisors and the state (id., subd. (a)(1)), with the state paying 65 percent and the County 35 percent of the nonfederal share of wage and benefit increases negotiated by the Public Authority, with the state contribution capped at a maximum amount set by statute. (Id., subds. (c), (d).) Further, in administering the IHSS program, County and Public Authority act as an agent of the state. (In-Home Supportive Services v. WCAB, supra, 152 Cal.App.3d 720, 731.)

Real parties in interest attempt to differentiate their role in determining and paying wages, as well as in keeping records, from that of the state, implying that real parties in interest are not joint employers with the recipient, even though the state may be. However, we agree with In-Home Supportive Services v. WCAB, supra, 152 Cal.App.3d 720, that in administering the IHSS program, counties act as agents of the state, rendering both the state and County employers of the IHSS provider. (Id. at p. 731.) (It appears undisputed that Public Authority necessarily is an agent of County in administering the IHSS program.)

In In-Home Supportive Services v. WCAB, supra, 152 Cal.App.3d 720, the court held the IHSS provider was a dual employee of the IHSS recipient and the state for purposes of workers’ compensation coverage. (Id. at pp. 725, 732.) The appellate court reasoned that “[t]he state supervises the county welfare departments (counties) which administer the program on the local level. [Citations.]” (Id. at p. 725.) “This scheme of engagement of individuals by the state, through its agents [(the county welfare departments)], to perform IHSS services for recipients required by state regulations establishes an employment relationship. The individual must do the chores listed in the county assessment of need. Payment for these services is provided by the state. The county, under the regulatory scheme, has the right to sufficient control over the IHSS provider to make the state chargeable, by virtue of the agency relationship with the state, as an employer.” (Id. at p. 731, fn. omitted, some italics added.) In so holding, the court rejected the state’s argument that the provider could not be an employee of the state where Labor Code section 3351.5, subdivision (b), stated that an IHSS worker was “ ‘an employee of the recipient.’ ” (In-Home Supportive Services v. WCAB, at pp. 733-734.) The court recognized the dual employment relationship where the state, by virtue of the state’s agency relationship with the county, was chargeable as an employer, as was the recipient. (Id. at pp. 732-734.)

(3) Maintain employment records. Both County and the state maintain employment records on the provider and the recipient. Real parties in interest concede County enters the provider’s timesheet into a database maintained by the state. (DSS Manual, § 30-769.) The state issues the checks to the providers. County also “[a]uthorize[s] the disbursement of all funds paid . . . by: [f] (1) [Reviewing all time sheets prior to entry of time sheet data into the system to ensure consistency between hours reported and hours authorized [and by] [f] (2) [Reviewing any significant discrepancies between hours reported and hours authorized to determine the reason and take corrective action as indicated.” (DSS Manual, § 30-769.241(c), italics added.) The state maintains a database of pay records, issues IRS form W-2s to the provider and is responsible for a myriad of employer functions with respect to withholding, deductions, workers’ compensation, and so forth on behalf of the recipient as the employer. (§§ 12301.6, 12302.2.) County retains completed timesheets (DSS Manual, § 30-769.24(d)) and is required to “[r]espond to and resolve payment inquiries from recipients and providers.” (DSS Manual, § 30-769.24(e).) Should a provider have a grievance or complaint concerning processing or payment of money for personal services rendered, the grievance or complaint is submitted to and determined by County in the first stage of the process. (DSS Manual, § 30-767.6(a).)

Furthermore, currently County must perform additional “quality assurance activities,” including fraud detection and prevention in administering the IHSS program. (§ 12305.71.) It must perform routine reviews of supportive case services to ensure there are accurate assessments of needs and hours; developing, with the state, policies, procedures, timelines, and instructions under which County will receive, resolve and respond appropriately to claims data match discrepancies or other information that indicates potential over-payments to providers or recipients or third party liability; monitoring the delivery of supportive services in the county to detect and prevent potential fraud by providers, recipients and others to maximize recovery of overpayments. (§ 12305.71, subds. (a), (b), (c).) Such monitoring may include unannounced home visits to a recipient’s home to verify the receipt of services. (§ 12305.71, subd. (c)(3)(A), (B).)

Public Authority is required to investigate the qualifications and background of potential providers and to provide training for providers as well as recipients. (§ 12301.6, subd. (e)(2),(4).) Where Public Authority is notified that the prospective registry applicant has been convicted of certain criminal fraud offenses specified in the statutes, the Public Authority “shall deny the request to be placed on the registry for providing supportive services to any recipient of the [IHSS] program.” (§ 12301.6, subd. (e)(2)(A)(ii); see subd. (e)(2)(A)(iii).)

In sum, this factor militates strongly toward the existence of an employment relationship between real parties in interest and the provider.

(4) Supervision and control over employee work schedules or conditions of employment. The key role played by County in “supervising” the provision of services by IHSS providers to recipients is inherent in the structure of the program and in the standards governing the delivery of services set forth in the DSS Manual. With regard to individual provider compensation, the DSS Manual states: “Social service staff shall determine the amount of the IHSS payment required to purchase services to meet the IHSS adjusted need . . . .” (DSS Manual, § 30-764.11.) Further, “[t]he hours and amount of compensation available for personal attendant providers shall be determined by county social services staff. The payment shall be the minimum necessary to obtain adequate service to meet the authorized service needs of the recipient.” (DSS Manual, § 30-764.13.) In addition, “[t]he recipient shall develop a work schedule which is consistent with the authorized service hours at the county’s base rate. If the recipient finds that a work schedule cannot be established without requiring payment in excess of the county’s base rate, the recipient shall bring such information to the county’s attention. The county will determine if payment in excess of the base rate is necessary. Any additional costs resulting from the recipient’s actions in work scheduling or increasing the rate paid per work unit shall be borne by the recipient unless prior county approval has been obtained.” (DSS Manual, § 30-764.23, italics added.) The DSS Manual also states that “[a]s employers[,] recipients have certain responsibilities for standards of compensation, work scheduling and working conditions as they apply to IHSS individual providers. The county will assure that all recipients understand their basic responsibilities as employers.” (DSS Manual, § 30-764.31, italics added.)

Real parties in interest argue that although the DSS Manual “contains numerous, and quite specific, conditions for a recipient to receive services and classifications of the type of services a recipient may be entitled to, it does not control when and how provider actually works for the recipient.” (Italics added.) Nevertheless, it is undisputed that County is responsible for: “(1) Authorizing services for an IHSS recipient; [f] (2) Determining a recipient’s need for IHSS, the level and quality of services required, and the eligibility of individuals to be served; [f] (3) Conducting the initial or any subsequent assessment of need for services; [and] [][] (4) Terminating the recipient’s participation in the IHSS program.” (Sonoma County Mun. Code, § 2-363, subd. (d); see § 12301.1) Although real parties in interest accurately point out that the provider may work at whatever tasks the recipient assigns and for whatever length of time the two agree, the provider will only be paid under the IHSS program for those hours and services authorized by the County. (See § 12300, subd. (h)(3) [cap on maximum number of hours]; DSS Manual, § 30-764.23 [requiring prior approval by County for payment in excess of the base rate and providing that “additional costs resulting from the recipient’s actions in work scheduling or increasing the rate paid per work unit shall be borne by the recipient unless prior county approval has been obtained.”].)

These aspects of the relationship between recipient and provider are no different than when Bonnette was decided. As was the case then, the recipients are responsible for the day-to-day supervision of the providers. However, today, real parties in interest perform additional “quality assurance activities,” monitoring the delivery of supportive services to detect and prevent potential fraud by providers, recipients and others. Such monitoring activities even include the authority to conduct home visits. (§ 12305.71.) Moreover, the County has authority to grant exceptions to the hourly task guidelines where circumstances require (DSS Manual, § 30-757) and is tasked with assisting providers and recipients with problems or complaints regarding payment.

Here, the “economic reality” is, as was the case in Bonnette, supra, 704 F.2d 1465, that real parties in interest and the state exercise “considerable control over the structure and conditions of employment by making the final determination, after consultation with the recipient, of the number of hours each chore worker would work and exactly what tasks would be performed” in order to receive payment authorized under the IHSS program. (Id. at p. 1470.)

Our conclusion, that not only the recipient but also real parties in interest may be joint employers of the IHSS service provider under the FLSA, finds further support in the actions of the Legislature, taken shortly after the period during which Guerrero alleges she performed IHSS services for Buenrostro.

In 2009, the Legislature required that, effective November 1, 2009, “all prospective providers must complete a provider orientation at the time of enrollment, as developed by the [Department, in consultation with counties . . . .” (§ 12301.24, subd. (a).) The orientation must include, but is not limited to: “[t]he requirements to be an eligible IHSS provider,” “a description of the IHSS program,” a description of program “rules, regulations, and provider-related processes and procedures, including timesheets,” “[t]he consequences of committing fraud,” “[t]he Medi-Cal toll-free telephone fraud hotline and Internet Web site for reporting suspected fraud or abuse in the provision or receipt of supportive services.” (Id., subd. (a)(1)—(5).) To complete provider enrollment, at the conclusion of the provider orientation, all applicants must sign a statement agreeing that he or she will provide authorized services to a recipient, understands timesheet requirements, will “cooperate with state or county staff to provide any information necessary for assessment or evaluation of a case,” “understands and agrees to program expectations and is aware of the measures that the state or county may take to enforce program integrity,” “has attended the provider orientation and understands that failure to comply with program rules and requirements may result in the provider being terminated from providing services through the IHSS program.” (§ 12301.24, subd. (b)(1)—(5).) The county is required to “indefinitely retain this statement in the provider’s file” and a “[rjefusal of the provider to sign the statement . . . shall result in the provider being ineligible to receive payment for the provision of services and participate as a provider in the IHSS program.” (§ 12301.24, subd. (d).)

B. Moreau v. Air France

Real parties in interest contend the facts here are analogous to those in Moreau v. Air France (9th Cir. 2003) 356 F.3d 942 (Moreau), arising under the Family and Medical Leave Act of 1993 (29 U.S.C. § 2601 et seq.) (FMLA) and its California counterpart, the California Moore-Brown-Roberti Family Rights Act. (Gov. Code, § 12945.2.) (Moreau, at p. 944.) In Moreau, the Ninth Circuit affirmed a grant of summary judgment in favor of Air France, finding the airline was not a joint employer of service workers hired by outside entities with which Air France contracted for performance of ramp and towing services, cargo and baggage handling and food preparation. (Id. at p. 953.) In the absence of reported cases addressing joint employment in the FMLA context, the court applied the joint employer analysis developed in FLSA cases, recognizing that the joint employment determination required consideration of the total employment situation, but focusing primarily on the four factors it had applied in Bonnette, supra, 704 F.2d 1465 (Moreau, at pp. 946-947) and a nonexhaustive list of additional factors relevant to the “economic reality” of the alleged joint relationship considered in Torres-Lopez v. May (9th Cir. 1997) 111 F.3d 633 (Torres-Lopez) that led Torres-Lopez to conclude that the grower should be considered a joint employer with the labor contractor of farmworkers. (Moreau, at pp. 947, 950-952.)

Moreau first considered “the Bonnette factors, which roughly correspond to the Torres-Lopez ‘regulatory factors.’ [Citations.]” (Moreau, 356 F.3d at p. 950.) It found none pointed toward joint employment. “Air France lacked the ability to hire or fire ground handling company employees, it did not determine the rate or method of pay for these employees, and it did not keep employment records for these employees. It did not set or control the employees’ work schedules, working conditions, or establish conditions upon which the employees would receive payment.” (Ibid., fn. omitted.) It is immediately apparent that at least two critical factors present in this case— real parties in interest’s determination of the rate and method of pay for providers and its participation with the state in generating and retaining employment records and timesheets—were not present in Moreau.

Further, Moreau recognized that Air France’s specification of how it wanted its work performed, and its checking to ensure its standards were met, could “in some situations, constitute ‘indirect’ supervision of the employees’ performance. [Citation.]” (Moreau, supra, 356 F.3d at p. 951, citing Torres-Lopez, 111 F.3d at pp. 642-643.) However, because much of the indirect supervision or control exercised by Air France was to ensure compliance with various safety and security regulations, the court concluded it was “qualitatively different from the farmworker situation in Torres-Lopez (Moreau, at p. 951.) Moreau also observed that Air France’s actions in specifying the work to be performed and following up to ensure adequate performance could constitute some control over the work or working conditions of the employee, but concluded that viewed in context, such supervision and control was minimal in contrast to “numerous other factors” that negate a finding of joint employment relationship. (Moreau, at p. 951, italics added.) Here, many of the other factors support the finding of a joint employment relationship.

Finally, Moreau, supra, 356 F.3d 942, arose from the district court’s grant of summary judgment. On appeal, the Ninth Circuit recognized that the appeal was “necessarily fact-specific” (id. at p. 944), while also recognizing that the question whether Air France was a joint employer was a legal question. (Id. at p. 945.) The instant case arises from the sustaining of a demurrer. Although the IHSS program and the roles of the state and real parties in interest are set forth in detail by statute, ordinance, and administrative standards, nevertheless, many of the “facts” regarding the particular IHSS services authorized for Buenrostro and the specific tasks performed by Guerrero are unknown at this stage of the proceeding.

IV. FLSA’s Domestic Services Companionship Services Exemption

As an alternative and independent basis for granting the demurrer to Guerrero’s FLSA cause of action, the superior court also concluded that Guerrero’s job was exempt from FLSA provisions related to minimum wage and maximum hour protections, pursuant to the domestic service “companionship” exception of title 29 United States Code section 213. Guerrero maintains that she does not come within the exception, as she alleged that while providing IHSS services to Buenrostro, she “performed general household work exceeding twenty percent of her total weekly hours worked.” We agree with Guerrero that the trial court erred in sustaining the demurrer on this alternative basis where there existed factual questions as to what activities constituted the “general household work” she alleged she performed and whether such work exceeded 20 percent of her total weekly hours worked.

As described by the United States Supreme Court in Long Island Care at Home, Ltd. v. Coke (2007) 551 U.S. 158, 162 [168 L.Ed.2d 54, 127 S.Ct. 2339]: “In 1974, Congress amended the Fair Labor Standards Act of 1938 (FLSA or Act), 52 Stat. 1060, to include many ‘domestic service’ employees not previously subject to its minimum wage and maximum hour requirements. See Fair Labor Standards Amendments of 1974 (1974 Amendments), §§ 7(b)(1), (2), 88 Stat. 62 (adding 29 U.S.C. § 206(f), which provides for a minimum wage for domestic service employees, and § 207(1), which extends overtime restrictions to domestic service employees). When doing so, Congress simultaneously created an exemption that excluded from FLSA coverage certain subsets of employees ‘employed in domestic service employment,’ including babysitters ‘employed on a casual basis’ and . . . companionship workers described [in 29 United States Code section 213(a)(15)]. § 7(b)(3), 88 Stat. 62 (codified at 29 U.S.C. § 213(a)(15)).”

Title 29 United States Code section 213(a) states that the minimum wage and overtime provisions of the FLSA “shall not apply with respect to— [f] • • • [f] (15) any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary).” (29 U.S.C. § 213, italics added.)

In turn, regulations promulgated by the federal Department of Labor define “domestic service employment’ covered by FLSA minimum wage and overtime provisions as “services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom he or she is employed. The term includes employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, laundresses, caretakers, handymen, gardeners, footmen, grooms, and chauffeurs of automobiles for family use. It also includes babysitters employed on other than a casual basis. This listing is illustrative and not exhaustive.” (29 C.F.R. § 552.3 (2012).) The Department of Labor defines exempted “companionship services” as, “those services which provide fellowship, care, and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the aged or infirm person such as meal preparation, bed making, washing of clothes, and other similar services. They may also include the performance of general household work: Provided, however, [t]hat such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. . . .” (29 C.F.R. § 552.6, some italics added.)

FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.” (Arnold v. Ben Kanowsky, Inc. (1960) 361 U.S. 388, 392 [4 L.Ed.2d 393, 80 S.Ct. 453]; accord, Corning Glass Works v. Brennan (1974) 417 U.S. 188, 196-97 [41 L.Ed.2d 1, 94 S.Ct. 2223] [reiterating the “general rule that the application of an exemption under the [FLSA] is a matter of affirmative defense on which the employer has the burden of proof’]; see Meacham v. Knolls Atomic Power Laboratory (2008) 554 U.S. 84, 85 [171 L.Ed.2d 283, 128 S.Ct. 2395] [“[t]he Court has given this principle particular weight in enforcing the [FLSA] . . . .”]; Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 562 [38 Cal.Rptr.2d 221].)

The FLSA companionship exemption distinguishes household work related to the care of the recipient, which includes meal preparation, bed making, laundry, and other similar services, from general household work that is unrelated to the care of the recipient. (29 C.F.R. § 552.6 (2012).) In McCune v. Oregon Senior Services Division (9th Cir. 1990) 894 F.2d 1107 (McCune), the court recognized that under the federal regulation “any household work related to the care of the individual would not be counted towards the twenty percent threshold.” (Id. at p. 1111.) The district court whose grant of summary judgment was affirmed by the Ninth Circuit illustrated this distinction: “Dusting or cleaning [the client’s bedroom or living room] appears to be routine, general household work, rather than work related to the individual. Cleaning a spill by the client in either room, by contrast, would be non-routine care more related to the individual than to the general household, and would not be included in the twenty percent figure, [f] The regulation defines care related to the individual as including meal preparation, bed making, washing of clothes, and ‘other similar services.’ These similar services would presumably include other types of personal care, such as bathing, feeding, or cleaning spills.” (McCune v. Oregon Senior Services Division (D.Or. 1986) 643 F.Supp. 1444, 1450, affd. (9th Cir. 1990) 894 F.2d 1107.)

It has been observed that, “The inquiry into whether an employee’s household work is related to the care of the individual is one of the most confused aspects of the jurisprudence regarding home healthcare workers.” (Biklen, Healthcare in the Home: Reexamining the Companionship Services Exemption to the Fair Labor Standards Act (2003)