There is no court appointed executor as his home was transferred via a transfer of deed upon death, which avoided probate. I organized his care and caregiver was paid by a payroll service an agreed upon rate of $18/hr., using funds from a home equity line of credit on dad's home.
I find it both odd and sad if this caregiver is contacting you now a year and a half later and perhaps even longer if they are talking about pay discrepancies going back the three years they were providing service. If this is the case I suspect they maybe got a job with an agency or another family who had used one previously and are now getting overtime pay not knowing it existed when they worked for you. It’s a shame they now feel wronged because it sure doesn’t sound like there was any agreement other than the $18 per hour and after 3 years everyone seemed good with that. It’s a shame this is coming up now and I hope you can put it to bed swiftly and easily.
OPs answer to my question.
"I sent her hours over to payroll service each month and they paid her her regular hourly rate for all hours worked. She did not claim or request overtime during her employment."
If the employee did not put in for OT, how can she now prove she worked it? Was she hourly pay or salary? Salary you get no OT. He hired a payroll services so the proper taxes were taken out of employees salary so I don't see why he would gip her on OT.
And its my understanding, by the conversations we have had on this forum, that if estate does not go to probate, then debtors are out of luck.
Maybe we aren't being told the whole story but from what we have been told, IMO the employee is at fault here. When she cashed those checks she said that everything was fine. It was up to her to claim OT at the time. If she did and was shorted, it was up to her to tell OP then she was shorted and it corrected in her next check. You don't wait a year and a half to say "By the way, you owe me OT from 2 years ago."
It comes down to, she has to prove her case and then he has to research and see if her claim is legit. And if its a matter that she put in the OT and he just gave her regular hours, she should have complained then, he corrects it or she goes to the Labor Board filing a complaint. Seems she did none of this and now client is dead, thinks she can now put in a claim. No estate, no probate, no money. I feel the best she may be able to do is place a lien on the house. (But that cost money and proof) If OP sells, then she gets her money.
IMO when ur talking OT pay in this country its when you have work over 40 hrs a week and get time and a half. I worked a job that called for a 37 1/2 hr work week. If I worked OT, I did not get time and a half until I worked over 40 hrs. That 1 1/2 hrs was straight time.
"they paid her her regular hourly rate for all hours worked"
Lets say her contract to work a week was 35 hours. She worked 40. He says she got paid for all hours worked. So she put in for 40 and got 40. There is no OT pay when it comes to working 40hrs or under. So what is her discription of OT to his discription of OT.
With some types of employment caregiving being one employee can't afford to not cash a paycheck. Even when they're getting screwed.
That does not mean she didn't put in for the overtime. Being agency help is a low-paying, crappy job. An agency employed caregiver is going to put in for every cent they're owed.
The more likely explanation is the care agency is lying about the overtime request. As I've said many times homecare can be a shady business. It's always the employee who gets screwed when it comes to money.
Maybe the OP is off the hook because the father's estate did not have to be probated so no claims can be put in to pay debts owed.
That doesn't mean the caregiver should not get paid what they are owed.
If the agency won't pay the OP can do what's right and make a deal with the caregiver. Even if it's not for the full amount owed at least it's something.
I understand what you're saying and it's good that your friend was able to stay in her home being cared for until the end.
As you know, I helped with caregiving for my first husband so he could be home and not in a nursing home. There was no way he could have afforded to use a homecare agency for the caregiving because he needed round-the-clock coverage.
I was remarried so was able to take time off from work. My second husband was understanding about it. Even if he wasn't, I would have done it anyway.
There were also cash-pay caregivers who came as well. Good CNA's that I knew and they were paid privately by the family.
People do the best they can. When people aren't filthy rich they sometimes have to be creative on how to get what's needed.
This is why I have no tolerance or respect for a person who feels they need to report at once on a caregiver who's making a couple bucks on a side job.
I think the world would be a far better place if people like this learned to mind their own business whenthey should.
There are apparently some very specific rules for "companionship services for people who need someone to be with them because of their age or a disability."
https://www.oregon.gov/boli/workers/Pages/domestic-workers.aspx
"Under Oregon law, exempt “companionship services” includes fellowship, care and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for their own needs. These services may include household work related to the care of the elderly or infirm person such as meal preparation, bed making, washing of clothes and other similar services. They may also include general household work, provided that such work does not exceed 20 percent of the total weekly hours worked.
The exemption under federal law is more narrow. The exemption is not available to third party employers such as home health agencies. In addition, the scope of exempt “companionship services” is limited to the provision of “fellowship” and “protection.”
The provision of “fellowship” means to engage the person in social, physical, and mental activities, such as conversation, reading, games, crafts, or accompanying the person on walks, on errands, to appointments, or to social events.
The provision of “protection” means to be present with the person in his or her home or to accompany the person when outside of the home to monitor the person’s safety and well-being.
Federal regulations do permit some provision of “care” as part of companionship services so long as the care does not exceed 20 percent of the total hours worked per person and per workweek. The term “care” under federal regulations means assisting the person with:
Activities of daily living (such as dressing, grooming, feeding, bathing, toileting, and transferring) and
Instrumental activities of daily living, which are tasks that enable a person to live independently at home (such as meal preparation, driving, light housework, managing finances, assistance with the physical taking of medications, and arranging medical care)."
So, if no overtime was paid, I'd speculate that the caregiver was categorized as providing companionship services for more than 80% of the time, and providing the individual ADL/IADL assistance or personal household work for 20% or less of the time.
I'd suggest gathering up your contract(s) with the caregiver and the payroll company and any other relevant paperwork. Then consult an appropriate attorney if you believe you may be sued. An expert will know what questions to ask and what exceptions might apply. They can draft a settlement agreement offering a specific payment in exchange for dropping the issue if you feel that the care given was greatly appreciated, even if the worry about a lawsuit was not.
I must declare a kind of interest, in that this is triggering anger with me about the whole benefits and payments issue. If we go over hours we're supposed to claim overtime. If we work unscheduled hours we're supposed to claim overtime. If we work unscheduled hours on public holidays, it's yea much and if it's scheduled hours it's that much and if it's on Sunday or Thursday or before eight or after seven -
Payroll should know what rate is due for what hours, and it should be up to them and their spreadsheets to see that the correct rate gets paid. But it isn't. It's up to the worker to claim any additional hours or enhanced rates, and while I hate to be cynical it's amazing how complicated most systems seem to make it. With, of course, the implied threat of fraud charges hanging around in the background if you make an invalid claim.
If you still have the paperwork go back through what hours she worked, and if she's owed overtime (especially if she's owed overtime for working extended and/or unsocial hours) then see to it that she gets what she's due.
Or wasn't her work worth $27 an hour? I bet it was at the time.
What was submitted may not be what is owed. Many times a homecare worker has to stay extra hours even when they don't want to.
Sometimes a family will ask a caregiver to work some extra hours for their 'loved one' that are not through the agency. Or that insurance doesn't pay for. These hours are not recorded on the time sheet the caregiver submits to the agency.
That does not mean they do not have to be paid for.
I remember years ago when I was agency hired I always took side hours and never had a problem. Until one client whose adult son refused to pay me.
His mother had a limited number of hours that insurance paid for. She needed more. So he asked if I would work extra hours for cash that he would pay to me once a month when her social security came in. One month went by and he made an excuse that he hadn't been approved to be her SS Payee yet. So I told him he could pay me when that was all arranged.
Another two months came and went and still excuses. By now I was getting angry. I was working long hours and every week-end. He paid me a couple hundred dollars which was nowhere near what he owed me, but promised that everything was taken care of and that he'd be paying in full when her SS came in. One Monday I showed up for work and she had been placed in memory care over the week-end. The agency paid me my submitted hours on my time sheet. They didn't tell me she was getting placed.
My client's son thought he'd burn me on what was owed for additional hours because it wasn't in writing.
My then husband, his brothers and his cousin had to go and get my money. The client's son paid up what I was owed. He wouldn't have if they weren't waiting for him one night in his driveway.
Pay what the help is owed.
She should go immediately to the Labor Board because if she is owed this money she deserves to be paid.
When you work overtime do you get your overtime pay? Or do you tell your employer that's okay, they don't have to give it over because they use an outside service to do their payroll.
Make sure the help gets paid what they are owed. Even if this means you pay it out-of-pocket yourself.
Just because you were able to get around probating your father's house and it passed directly to you, does not mean that your father's debts don't have to be paid.
Pay the caregiver's what they are owed. Do what's right and don't screw over the help. Care agencies do it all the time.
Be better than they are.
"I sent her hours over to payroll service each month and they paid her her regular hourly rate for all hours worked. She did not claim or request overtime during her employment."
He cannot pay her if she did not tell him she worked OT. Too late to request it now.
If she has no proof she was short changed then I don't see a lawyer even bothering to take the case. She would pay more in lawyer fees than u may owe. She could have quit too if she felt she was not getting paid enough. May want to call the Labor Board and see how you could handle this. You did everything on the up and up. She signed and cashed her checks so that to me means she found no discrepancies.
Has she actually brought charges against you? Like providing an itemized bill of OT hours or a letter from a lawyer. She has to prove her case.
This sounds like an issue for the company that oversees her hours and assignments, and I'm not sure how it's your problem, if the company was the one who handled her payment and processed her papers.
Were the OT hours submitted? If so, were the hours not paid at all or not paid at the overtime rate?
TG you used a payroll service. You have legal records to back you up. So I don't think you have anything to worry about. No monetary estate, no trying to collect back pay. Since u were wise to have a payroll service hope you had a contract with her too.
I would check with a Trust and Estate Attorney, but I believe if there is no estate then there is no estate, and bills are sent back with "Deceased; no estate". I cannot know how much you feel this person will claim he or she is owed, but if it is substantial they may contact their own attorney to begin with a lawyer letter to you about funds they feels still owed.
Good luck. For legal advice be certain to check the experts--that is to say attorneys--for advice. We are only a Forum. An hour of time with an expert can save a world of woe.