Service Employees Internat. Union v. County of Los Angeles

• Decision Date: 27 November 1990
• Docket Number: No. B040811,B040811
• Citation: 275 Cal.Rptr. 508,225 Cal.App.3d 761
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 434, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 508

275 Cal.Rptr. 508

225 Cal.App.3d 761

SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 434, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

No. B040811.

Court of Appeal, Second District, Division 7, California.

Nov. 27, 1990.

Review Denied Feb. 21, 1991.

Davis, Cowell & Bowe, Richard G. McCracken and Andrew J. Kahn, San Francisco, for plaintiff and appellant.

De Witt W. Clinton, County Counsel, and Lester J. Tolnai, Principal Deputy County Counsel, for defendants and respondents.

LILLIE, Presiding Justice.

Plaintiff, Service Employees International Union, Local 434, appeals from judgment denying plaintiff's petition for a writ of mandate which would have ordered defendant County of Los Angeles to meet and confer with plaintiff as the representative of a group of workers alleged to be employees of the county.

FACTUAL AND PROCEDURAL BACKGROUND

The complaint alleged: Plaintiff is in the process of organizing home care workers The following statement of facts is based on the trial court's statement of decision.

who provide services to public aid recipients under the In-Home Supportive Services (IHSS) program (Welf. & Inst.Code, § 12300 et seq.). Over 12,000 home care workers, who have no recognized union representation, have authorized plaintiff to represent them in negotiations with the county. Plaintiff contends the home care workers are employees of the county for purposes of the Meyers-Milias-Brown Act (MMBA) (Gov.Code, § 3500 et seq.), which obligates local government employers to bargain with the representatives of their employees about wages, hours, and other terms and conditions of employment. The county denies that the home care workers are its employees. The complaint sought a determination that the home care workers are employees of the county for purposes of the MMBA and a peremptory writ of mandate ordering the county to meet and confer with plaintiff as the authorized representative of the home care workers.

The purpose of the IHSS program is to reduce the cost of care for the aged, blind or disabled by providing care for them in their homes. The program was originated, and is largely funded, by the federal government. A state may participate in the program by paying a portion of the funding and complying with federal requirements. California participates in the IHSS program pursuant to Welfare and Institutions Code section 12300 et seq. The county administers the program locally on behalf of the state in accordance with the statute and state regulations establishing a uniform range of services available to all eligible recipients. ¹ (Welf. & Inst.Code, §§ 12301, 12301.1, 12302.) County social workers interview applicants for IHSS services and determine their eligibility and need for such services ² and the number of hours of service to which the applicant is entitled under the regulations. (Reg. 30-761.) The county forwards the recipient's application to the state. If the state determines the applicant is eligible for the services the state sends a notice of action to the recipient setting forth a description of each specific service authorized and the number of hours allotted to each. (Welf. & Inst.Code, § 12300.2.)

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.) Defendant county chose the third alternative. Under that procedure the county may not compel the recipient to employ a specific individual (provider) to provide the authorized services. (Reg. 30-767.2.)

Where a recipient is unable to obtain a provider the county is required to make a reasonable effort to help the recipient find one. (Reg. 30-767.132.) To this end the county has set up a registry wherein prospective providers may list their names. Any person may become a provider. There are currently 50,000 providers in the county and there is no limit to the number of persons who may become providers in the IHSS program. The county does not screen or qualify prospective providers. If a recipient needs assistance in locating a provider the county social worker gives the recipient the names of three prospective providers from the registry. The recipient then contacts and interviews those persons and determines whether one of them is To obtain payment for the provider's services the recipient and the provider must sign and certify a time sheet showing the number of hours of provider assistance rendered during the preceding month. The recipient mails the time sheet to the county where it is checked for completeness and then entered into a computer payroll system installed and operated under contract with the state. Payment for the provider's services is made by the state and mailed to the recipient or the provider.

suitable and will be employed. On the other side of the coin a provider is free to select a recipient for whom he or she is willing to work.

The trial court found: The county exercises no supervisory control over providers. The manner in which the provider's tasks are performed is determined by the recipient, as are the hours when such services are performed. The provider is free to terminate his or her services without notice to the county; likewise, a recipient may discharge a provider at any time without notice to the county. If a provider is not performing satisfactorily the county has no right to intervene. Where the recipient's health or safety is endangered by such unsatisfactory performance, the county's only recourse is to place the recipient in an appropriate facility. The county has no authority to adjudicate a dispute between recipient and client regarding services. For purposes of the method of delivering IHSS services chosen by the county, employer is defined as the recipient and employee is defined as the provider. (Reg. 30-753, subds. (i), (j).) As the employer, a recipient has responsibilities for work scheduling and working conditions. (Reg. 30-764.31.) Over 50 percent of recipients have friends or family members serving as providers. The decision regarding which provider to employ is solely that of the recipient. The county social worker makes no recommendation as to any particular provider even where the county, in carrying out its duty to assist the recipient, gives the recipient the names of three prospective providers from the registry.

The county has no authority to screen providers, control who will be a provider, control the number of providers (which is unlimited), regulate their hours of work, vacations, hiring or termination. While the county is required to fix the providers' compensation at not less than the minimum wage, the compensation is paid from the state treasury, with the state assuming responsibility for various deductions for insurance and other benefits. Further, there is no credible evidence that the county ever considered itself an employer of the providers. On the contrary, its actions are consistent with its position that the providers are not employees of the county under the MMBA or in any other context.

Judgment was entered denying plaintiff's petition for writ of mandate and declaring that IHSS providers under the independent provider mode of delivery of service are not employees of the county within the meaning of the MMBA.

Plaintiff appeals from the judgment.

DISCUSSION

I

While plaintiff does not expressly so argue, it implies that the trial court--and inferentially this court as well--was bound by decisions of the federal Circuit Court of Appeals and the California Court of Appeal, cited below, which determined that home-care providers in California's IHSS program are employees of the state or the state and county.

In Bonnette v. California Health & Welfare Agency (9th Cir.1983) 704 F.2d 1465, it was held that under the Fair Labor Standards Act (FLSA) (29 U.S.C. § 201 et seq.) welfare agencies of the State of California and three of its counties were employers of in-home care providers whose services, as in the present case, were purchased by recipients of the services with money provided by the state; accordingly, the providers were entitled to the federal minimum wage. After noting that the definition of "employer" in the FLSA must be given an expansive interpretation in order to effectuate the statute's broad remedial The other case upon which plaintiffs rely is In-Home Supportive Services v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 720, 199 Cal.Rptr. 697, a decision of the Third District, wherein it was held that for purposes of the workers' compensation law (Lab.Code, § 3200 et seq.) an IHSS provider is employed by the state as well as the recipient and therefore is eligible for benefits for an injury sustained in the course and scope of employment. Said the court: "This scheme of engagement of individuals by the state, through its agents, 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." (In-Home Supportive Services, supra, 152 Cal.App.3d at p. 731, 199 Cal.Rptr. 697, original emphasis, fn. omitted.)

purposes, including payment of the federal minimum wage (Bonnette, supra, 704 F.2d at p. 1469), the court stated: "We conclude that, under the FLSA's liberal definition of 'employer,' the appellants were employers of the chore workers. The appellants...