Silver Taube: County leaders address working conditions in residential care facilities

Supervisor Cindy Chavez’s final referral to county staff asked for options to address working conditions at residential care facilities and to contact stakeholders regarding the possible formation of an advisory council.

This recommendation aligns with the county’s 2024 legislative policies that recommend: “Reform of Residential Care Facilities for the Elderly that increase frequency of State visits, improve monitoring practices, and provide complaint resolution.” The referral, which passed unanimously, is the result of advocacy from caregivers, the Pilipino Association of Workers and Immigrants and the Santa Clara County Wage Theft Coalition.

Residential care facilities are private homes with six beds that provide 24-hour care and assistance with activities of daily living. There are two types of facilities: adult residential care facilities for developmentally disabled adults and residential care facilities for the elderly, for people 60 and older. There are 7,800 residential care facilities for the elderly in California.

An advisory council with workers, care home owners, worker and patient advocates and government agencies is needed to improve the intolerable working conditions at residential care facilities.

Caregivers in residential care facilities are vulnerable to wage theft, human trafficking, sexual harassment, physical and verbal abuse and retaliation including threats to call ICE if they report violations. The abusive working conditions and understaffing put patients and caregivers at risk, jeopardize caregivers’ health and safety and cause public health concerns.

Residential care facilities often accept residents who belong in skilled nursing facilities because they have acute medical needs or cognitive impairment that require on-going medical monitoring. Caregivers have not been properly trained to deal with acute care. Currently, there are no staffing ratios for residential care facilities for the elderly, other than a minimal staffing on the night shift. Many caregivers are above 50 or 60 years old with their own health problems. They are not permitted to use Hoyer lifts, so back injuries are common.

Wage theft in residential care facilities is prevalent, and 70% of judgments are unpaid. A 2021 Santa Clara County Wage Theft Coalition study revealed 1,628 wage theft cases in the county’s residential care industry affecting 3,474 employees. Caregivers lost a total of $15,328,942 in unpaid wages.

Labor Code 238 prohibits care homes from doing business in the state if they don’t pay wage theft judgments. The Department of Social Services receives names of care home owners who have not paid judgments from the state labor commissioner’s office, but the care homes continue to operate.

“There’s no accountability,” Hina Shah, formerly an associate law professor at Golden Gate University who directed the Women’s Employment Rights Clinic, said. Shah called conditions in many care homes “akin to modern-day slavery.”

The goals of a residential care facility advisory council should include the following:

• Increase education and awareness by providing residential care facility employers with training that includes the unlawful practice of paying a flat daily or monthly rate, which fails to cover all hours worked, and compensating workers for only 8 hours per day when the law requires compensation at night if the workers work during that time.
• Educate the community about the problems such as understaffing and the difficulties these problems create for patients and workers.
• Advocate for more monitoring, oversight and staffing.
• Create a public list of care homes that have unpaid wage theft judgments so consumers have information on the care homes they wish to choose for themselves or their loved ones.

We are fortunate to have county supervisors who recognize the need for a residential care facility advisory council to address the intolerable working conditions in this industry.

San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].