BILL NUMBER: AB 889 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Members Ammiano and V. Manuel Pérez
FEBRUARY 17, 2011
An act to amend Sections 226, 3351, 3352, 3551, 3708, 3715, 6303,
and 6314 of, to repeal Section 4156 of, and to add Part 4.5
(commencing with Section 1450) to Division 2 of, the Labor Code,
relating to domestic work employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 889, as introduced, Ammiano. Domestic work employees.
Existing law regulates the wages, hours, and working conditions of
any man, woman, and minor employed in any occupation, trade, or
industry, whether compensation is measured by time, piece, or
otherwise, except for individuals employed as outside salesmen and
individuals participating in specified national service programs.
Under existing law, the Industrial Welfare Commission within the
Department of Industrial Relations is authorized to adopt rules,
regulations, and orders to ensure that employers comply with those
provisions of law.
This bill would specially regulate the wages, hours, and working
conditions of domestic work employees, as defined. Specifically, this
bill would, among other things, provide a private right of action
for a domestic work employee when those regulations are violated by
his or her employer; provide an overtime compensation rate for
domestic work employees; require annual pay increases, paid vacation,
and paid sick days for domestic work employees; and require that a
domestic work employer provide written notice of termination 21 days
in advance.
Existing law requires an employer to provide its employees with
specified information regarding their wages either semimonthly or at
the time of each wage payment. Under existing law, this requirement
does not apply to employers of persons who engage in specified types
of household domestic service.
This bill would delete the exclusion for employers of persons who
engage in specified types of household domestic service, thereby
requiring those employers to provide the above-described information.
Existing law requires employers to carry workers' compensation
insurance. The failure to secure workers' compensation as required by
the workers' compensation law is a misdemeanor. Under existing law,
employers of persons who engage in specified types of household
domestic service and who work less than a specified number of hours
are excluded from that definition of employer and are therefore
excluded from the requirement to carry workers' compensation
insurance, as specified.
This bill would remove that exclusion and require all domestic
work employers, as defined, to carry workers' compensation insurance
and would make conforming changes. By expanding the definition of a
crime, this bill would impose a state-mandated local program.
Existing law, the California Occupational Safety and Health Act of
1973, requires employers to comply with certain standards ensuring
healthy and safe working conditions, as specified. Under existing
law, employment related to household domestic services is excluded
from the provisions of the act.
This bill would remove that exclusion and require domestic work
employers to comply with the requirements of the act.
The Division of Occupational Safety and Health of the Department
of Industrial Relations is charged with enforcing occupational health
and safety laws, orders, and standards, including the investigation
of alleged violations of those provisions.
This bill would provide a process for investigating alleged
violations of the above provisions when the place of employment is a
residential dwelling.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) As recognized by the State of California in Resolution Chapter
119 of the Statutes of 2010, it is the policy of the state to
encourage and protect the rights of domestic work employees.
(b) California's domestic workers, which includes housekeepers,
nannies, and caregivers for children, persons with disabilities, and
the elderly, work in private households to care for the health,
safety, and well-being of the most important aspects of Californians'
lives: their families and homes.
(c) Domestic workers play a critical role in California's economy,
working to ensure the health and prosperity of California families
and freeing others to participate in the workforce, which is
increasingly necessary in these difficult economic times. The labor
of domestic workers is central to the ongoing prosperity of the state
but, despite the value of their work, domestic workers have not
received the same protection under state laws as workers in other
industries. Most domestic workers labor to support families and
children of their own, and more than half are primary income earners,
but two-thirds of domestic workers earn low wages or wages below the
poverty line.
(d) Because domestic workers care for the most important elements
of their employers' lives, their families and homes, it is in the
interest of employees, employers, and the people of the State of
California to ensure that the rights of domestic workers are
respected, protected, and enforced.
(e) The vast majority of domestic workers are women of color and
immigrants and are particularly vulnerable to unlawful employment
practices and abuses. Domestic workers usually work alone, behind
closed doors, and out of the public eye, leaving them isolated,
vulnerable to abuse and exploitation, and unable to advocate
collectively for better working conditions. Domestic workers often
labor under harsh conditions, work long hours for low wages without
benefits or job security, and face termination without notice or
severance pay, leaving many suddenly without both a job and a home.
In the worst cases, domestic workers are verbally and physically
abused or sexually assaulted, forced to sleep in conditions unfit for
human habitation, and stripped of their privacy and dignity.
(f) Domestic workers are still excluded from the most basic
protections afforded the rest of the labor force under state and
federal law, including the rights to fair wages, safe and healthy
working conditions, workers' compensation, and protection from
discriminatory and abusive treatment. The treatment of domestic
workers under federal and state laws has historically reflected
stereotypical assumptions about the nature of domestic work,
specifically that the relationship between employer and "servant" was
"personal," rather than commercial, in character, that employment
within a household was not "real" productive work, and that women did
not work to support their families.
(g) Given the limited legal protections historically provided to
domestic workers, and bearing in mind the unique conditions and
demands of this private, home-based industry, the Legislature, as an
exercise of the police power of the State of California for the
protection of the public welfare, prosperity, health, safety, and
peace of its people, further finds that domestic workers are entitled
to industry-specific protections and labor standards that eliminate
discriminatory provisions in the labor laws and guarantee domestic
workers basic workplace rights to ensure that domestic workers are
treated with equality, respect, and dignity.
SEC. 2. Section 226 of the Labor Code is amended to read:
226. (a) Every employer shall, semimonthly or at the time of each
payment of wages, furnish each of his or her employees, either as a
detachable part of the check, draft, or voucher paying the employee's
wages, or separately when wages are paid by personal check or cash,
an accurate itemized statement in writing showing (1) gross wages
earned, (2) total hours worked by the employee, except for any
employee whose compensation is solely based on a salary and who is
exempt from payment of overtime under subdivision (a) of Section 515
or any applicable order of the Industrial Welfare Commission, (3) the
number of piece-rate units earned and any applicable piece rate if
the employee is paid on a piece-rate basis, (4) all deductions,
provided that all deductions made on written orders of the employee
may be aggregated and shown as one item, (5) net wages earned, (6)
the inclusive dates of the period for which the employee is paid, (7)
the name of the employee and his or her social security number,
except that by January 1, 2008, only the last four digits of his or
her social security number or an employee identification number other
than a social security number may be shown on the itemized
statement, (8) the name and address of the legal entity that is the
employer, and (9) all applicable hourly rates in effect during the
pay period and the corresponding number of hours worked at each
hourly rate by the employee. The deductions made from payments of
wages shall be recorded in ink or other indelible form, properly
dated, showing the month, day, and year, and a copy of the statement
or a record of the deductions shall be kept on file by the employer
for at least three years at the place of employment or at a central
location within the State of California.
(b) An employer that is required by this code or any regulation
adopted pursuant to this code to keep the information required by
subdivision (a) shall afford current and former employees the right
to inspect or copy the records pertaining to that current or former
employee, upon reasonable request to the employer. The employer may
take reasonable steps to assure the identity of a current or former
employee. If the employer provides copies of the records, the actual
cost of reproduction may be charged to the current or former
employee.
(c) An employer who receives a written or oral request to inspect
or copy records pursuant to subdivision (b) pertaining to a current
or former employee shall comply with the request as soon as
practicable, but no later than 21 calendar days from the date of the
request. A violation of this subdivision is an infraction.
Impossibility of performance, not caused by or a result of a
violation of law, shall be an affirmative defense for an employer in
any action alleging a violation of this subdivision. An employer may
designate the person to whom a request under this subdivision will be
made.
(d) This section does not apply to any employer of any person
employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance, or use of the
dwelling, including the care and supervision of children, or whose
duties are personal and not in the course of the trade, business,
profession, or occupation of the owner or occupant.
(e)
(d) An employee suffering injury as a result of a
knowing and intentional failure by an employer to comply with
subdivision (a) is entitled to recover the greater of all actual
damages or fifty dollars ($50) for the initial pay period in which a
violation occurs and one hundred dollars ($100) per employee for each
violation in a subsequent pay period, not exceeding an aggregate
penalty of four thousand dollars ($4,000), and is entitled to an
award of costs and reasonable attorney's fees.
(f)
(e) A failure by an employer to permit a current or
former employee to inspect or copy records within the time set forth
in subdivision (c) entitles the current or former employee or the
Labor Commissioner to recover a seven-hundred-fifty-dollar ($750)
penalty from the employer.
(g)
(f) An employee may also bring an action for injunctive
relief to ensure compliance with this section, and is entitled to an
award of costs and reasonable attorney's fees.
(h)
(g) This section does not apply to the state, to any
city, county, city and county, district, or to any other governmental
entity, except that if the state or a city, county, city and county,
district, or other governmental entity furnishes its employees with
a check, draft, or voucher paying the employee's wages, the state or
a city, county, city and county, district, or other governmental
entity shall, by January 1, 2008, use no more than the last four
digits of the employee's social security number or shall use an
employee identification number other than the social security number
on the itemized statement provided with the check, draft, or voucher.
SEC. 3. Part 4.5 (commencing with Section 1450) is added to
Division 2 of the Labor Code, to read:
PART 4.5. Domestic Work Employees
CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS
1450. This part shall be known and may be cited as the Domestic
Work Employee Equality, Fairness, and Dignity Act.
1451. As used in this part, the following definitions apply:
(a) "Domestic work" means services related to the care of persons
in private households or maintenance of private households or their
premises. Domestic work occupations include childcare providers,
caregivers of sick, convalescing, or elderly persons, house cleaners,
housekeepers, maids, and other household occupations.
(b) (1) "Domestic work employee" means an individual who performs
domestic work and includes live-in domestic work employees and
personal attendants.
(2) "Domestic work employee" does not include any of the
following:
(A) Any person who performs services through the In-Home
Supportive Services program under Article 7 (commencing with Section
12300) of Chapter 3 of Part 3 of Division 9 of the Welfare and
Institutions Code.
(B) Any person who is the parent, grandparent, spouse, child, or
legally adopted child of the domestic work employer.
(C) Any person under 18 years of age who is employed as a
babysitter for a minor child of the domestic work employer.
(c) (1) "Domestic work employer" means a person, including
corporate officers or executives, who directly or indirectly, or
through an agent or any other person, including through the services
of a third-party employer, temporary service, or staffing agency or
similar entity, employs or exercises control over the wages, hours,
or working conditions of a domestic work employee.
(2) "Domestic work employer" does not include the State of
California or individuals who receive domestic work services through
the In-Home Supportive Services program under Article 7 (commencing
with Section 12300) of Chapter 3 of Part 3 of Division 9 of the
Welfare and Institutions Code.
(d) "Emergency" means an unpredictable or unavoidable occurrence
of a serious nature that occurs unexpectedly requiring immediate
action.
(e) "Hours worked" means the time during which a domestic work
employee is subject to the control of a domestic work employer, and
includes all time the domestic work employee is suffered or permitted
to work, whether or not required to do so.
(f) "Live-in domestic work employee" means a domestic work
employee who lives in the establishment where he or she works.
(g) "Personal attendant" means a person who performs domestic work
related to the supervision, feeding, or dressing of a child or other
person who, by reason of advanced age, physical disability, or
mental deficiency, needs supervision. Personal attendant includes
babysitters. The status of "personal attendant" applies if no
significant amount of work other than the foregoing is required.
1452. The Division of Labor Standards Enforcement shall enforce
this part.
1453. (a) Any domestic work employee aggrieved by a violation of
this part may bring an administrative action pursuant to Section 98
or may bring a civil action in a court of competent jurisdiction
against the domestic work employer violating this part.
(b) Upon prevailing, a domestic work employee bringing an action
pursuant to this section shall be entitled to any legal or equitable
relief as may be appropriate to remedy the violation, including the
payment of any back wages unlawfully withheld, the payment of an
additional sum as liquidated damages or penalties as specified in
this part, reinstatement of employment, interest, or injunctive
relief, or any combination of these remedies, as appropriate. A
domestic work employee bringing a civil action pursuant to this
section shall also be entitled to recover an award of reasonable
attorney's fees and costs, including expert witness fees.
(c) The rights and remedies specified in this part are cumulative
and nonexclusive and are in addition to any other rights or remedies
afforded by contract or under other provisions of law.
(d) Notwithstanding any provision of this code or Section 340 of
the Code of Civil Procedure, to commence an action for a violation of
this part a domestic work employee shall file an administrative or
civil complaint within three years of the violation.
CHAPTER 2. DOMESTIC WORK EMPLOYEE RIGHTS
1454. Except where otherwise provided in this chapter, Section
510 applies to a domestic work employee.
1455. (a) A domestic work employee who is required to be on duty
for 24 consecutive hours or more shall have a minimum of eight
consecutive hours for uninterrupted sleep, except in an emergency.
(b) If a domestic work employee is required to be on duty for 24
consecutive hours or more, the domestic work employer and the
domestic work employee may agree in writing to exclude a bona fide
regularly scheduled sleeping period of not more than eight hours for
uninterrupted sleep from hours worked, provided that the domestic
work employer otherwise complies with this section and Section 1457.
If no written agreement to the contrary is present, the eight hours
of sleeping time shall constitute hours worked.
(c) There is a rebuttable presumption that a domestic work
employee did not receive eight consecutive hours for uninterrupted
sleep if he or she is required to be on duty for 24 consecutive hours
or more and the domestic work employer does not hire a replacement
worker for at least eight consecutive hours in the 24-hour work
period.
(d) A domestic work employer shall pay a sum of fifty dollars
($50) to the domestic work employee for each day that the domestic
employer violates this section.
1456. (a) A live-in domestic work employee who is not required to
be on duty for 24 consecutive hours or more shall have at least 12
consecutive hours free of duty during each workday of 24 hours, of
which a minimum of eight consecutive hours are for uninterrupted
sleep. A live-in domestic work employee suffered or permitted to work
during the 12 consecutive off-duty hours shall be compensated in
accordance with Section 510.
(b) A live-in domestic work employee shall not be required to work
more than five days in any one workweek without a day off of not
less than 24 consecutive hours, except in an emergency. A live-in
domestic work employee who is suffered or permitted to work in excess
of five workdays in any workweek shall be compensated in accordance
with Section 510.
(c) A domestic work employer shall pay a sum of fifty dollars
($50) to the domestic work employee for each day that the domestic
work employer violates this section.
1457. Live-in domestic work employees and domestic work employees
who work 24 consecutive hours or more shall be provided sleeping
accommodations that are adequate, decent, and sanitary according to
usual customary standards. Domestic work employees shall not be
required to share a bed.
1458. (a) If a domestic work employee is required to report for
work and does so report but is not put to work or is furnished less
than half of his or her usual or scheduled day's work, the domestic
work employee shall be paid for half the usual or scheduled day's
work, but in no event for less than two hours nor more than four
hours, at the domestic work employee's regular rate of pay, which
shall not be less than the minimum wage.
(b) If a domestic work employee is required to report for work a
second time in any one workday and is furnished less than two hours
of work on the second time he or she reports for work, the domestic
work employee shall be paid for two hours at the domestic work
employee's regular rate of pay, which shall not be less than the
minimum wage.
(c) Subdivisions (a) and (b) do not apply under any of the
following conditions:
(1) Operations cannot commence or continue due to threats to
domestic work employees or property.
(2) Operations cannot commence due to the recommendation of civil
authorities.
(3) Public utilities fail to supply electricity, water, or gas, or
there is a failure in the public utilities or sewer system.
(4) The interruption of work is caused by an act of God or other
cause not within the domestic work employer's control.
(5) The domestic work employee is paid on standby status and is
called to perform assigned work at a time other than the domestic
work employee's scheduled reporting time.
1459. (a) A domestic work employee shall earn a wage increase
each year on the same day of the employee's original date of hire.
The increase shall be in a percentage amount corresponding to the
prior year's percentage increase, if any, in the Consumer Price Index
for urban wage earners and clerical workers for California as
computed by the Division of Labor Statistics and Research within the
department.
(b) In any action brought to recover unpaid annual cost of living
pay increases pursuant to Section 1453, a domestic work employee
shall be entitled to recover liquidated damages in an amount equal to
the wages unlawfully unpaid and interest thereon.
(c) Notwithstanding subdivision (b), if the domestic work employer
demonstrates to the satisfaction of the court or the Labor
Commissioner, as applicable, that the act or omission giving rise to
the action was in good faith and that the domestic work employer had
reasonable grounds for believing that the act or omission did not
violate subdivision (a), the court or Labor Commissioner may, in its
discretion, refuse to award liquidated damages or award any amount of
liquidated damages not exceeding the amount specified in subdivision
(b).
1460. (a) A domestic work employer shall not employ a domestic
work employee for a work period of more than five hours per day
without a meal period of not less than 30 minutes, except that if the
total work period for the day of the domestic work employee is no
more than six hours, the meal period may be waived by mutual consent
of the domestic work employer and the domestic work employee.
(b) A domestic work employer shall not employ a domestic work
employee for a work period of more than 10 hours per day without
providing the domestic work employee with a second meal period of not
less than 30 minutes, except that if the total hours worked is no
more than 12 hours, the second meal period may be waived by mutual
consent of the employer and the employee only if the first meal
period was not waived.
(c) Unless the domestic work employee is relieved of all duty
during a 30-minute meal period, the meal period shall be considered
an on-duty meal period and counted as time worked. An on-duty meal
period shall be permitted only if the nature of the work prevents a
domestic work employee from being relieved of all duty and shall be
by written agreement, revocable at any time by the domestic work
employee, between the domestic work employer and domestic work
employee.
(d) If a domestic work employer fails to provide to a domestic
work employee a meal period in accordance with this section, the
domestic work employer shall pay the domestic work employee one
additional hour of pay at the domestic work employee's regular rate
of compensation for each workday that the meal period is not
provided.
1461. (a) Every domestic work employer shall authorize and permit
all domestic work employees to take rest periods, which, insofar as
practicable, shall be in the middle of each work period. The
authorized rest period time shall be based on the total hours worked
daily at the rate of 10 minutes net rest time per four hours, or
major fraction thereof, of work. However, a rest period need not be
authorized for domestic work employees whose total daily work time is
less than three and one-half hours. Authorized rest period time
shall be counted as hours worked for which there shall be no
deduction from wages.
(b) If a domestic work employer fails to provide a domestic work
employee a rest period in accordance with the applicable provisions
of this order, the domestic work employer shall pay the domestic work
employee one additional hour of pay at the employee's regular rate
of compensation for each work day that the rest period is not
provided.
1462. (a) A domestic work employer shall permit a domestic work
employee who works five hours or more to choose the food he or she
eats and to prepare his or her own meals. A domestic work employee
may use the job site's kitchen facilities and kitchen appliances
without charge or deduction from pay.
(b) If a domestic work employer and the domestic work employee
agree that the domestic work employer will provide meals and the
domestic work employer wishes to offset the costs of those meals
pursuant to Industrial Welfare Commission Wage Order Number 15, the
domestic work employee may request and receive specific food items
for those meals.
(c) A domestic work employer who violates this section shall pay a
sum of fifty dollars ($50) to each domestic work employee for each
day that he or she violated this section.
1463. (a) (1) A domestic work employee shall accrue paid vacation
benefits at the rate of not less than one hour per every 30 hours
worked, beginning at the commencement of employment or the operative
date of this provision, whichever occurs first. A domestic work
employee may use accrued paid vacation after one year of service. One
year of service is completed on the 365th calendar day of
employment.
(2) Unused accrued paid vacation benefits shall carry over from
year to year. However, a domestic work employer may limit a domestic
work employee's use of accrued paid vacation as follows:
(A) After the first year of service, a domestic work employee may
use 40 hours or five days of paid vacation in each calendar year,
whichever is greater.
(B) After the fifth year of service, a domestic work employee may
use 80 hours or 10 days of paid vacation in each calendar year,
whichever is greater.
(C) After the tenth year of service, a domestic work employee may
use 120 hours or 15 days of paid vacation in each calendar year,
whichever is greater.
(b) A domestic work employer shall not require, as a condition of
taking paid vacation, that the domestic work employee search for or
find a replacement worker to cover the hours during which the
domestic work employee is on paid vacation leave.
(c) (1) A domestic work employee aggrieved by a violation of this
section shall be entitled to all of the following:
(A) The amount of any paid vacation unlawfully withheld.
(B) A penalty of two hundred fifty dollars ($250).
(C) Appropriate equitable relief.
(2) A domestic work employee is not aggrieved by a violation of
this section if the domestic work employer can demonstrate that it
denied a request to use paid vacation because of an emergency and
provided another opportunity for the domestic work employee to take
vacation time within three months of the date the domestic work
employee originally requested to use paid vacation.
(d) Upon request, a domestic work employer shall provide to a
domestic work employee an annual statement indicating the amount and
periods of accrued vacation.
1464. (a) (1) A domestic work employee shall accrue paid sick
days at the rate of not less than one hour per every 30 hours worked,
beginning at the commencement of employment or the operative date of
this provision, whichever occurs first. A domestic work employee may
use accrued paid sick days as they are accrued, beginning on the
90th calendar day of employment
(2) Unused accrued paid sick days shall carry over from year to
year. However, a domestic work employer may limit a domestic work
employee's use of paid sick days to 40 hours or five days in each
calendar year, whichever is greater.
(b) (1) A domestic work employee may use accumulated sick days for
the diagnosis, care, or treatment of an existing health condition;
preventive care; or care and services related to domestic violence or
sexual assault.
(2) A domestic work employee may use accumulated sick days for
himself or herself, or his or her child or legal ward; parent;
sibling; grandparent; grandchild; and spouse or registered domestic
partner under any state or local law. The aforementioned child,
parent, sibling, grandparent, and grandchild relationships include
biological relationships and relationships resulting from adoption;
step-relationships; legal guardianships; foster care relationships;
and in loco parentis relationships. "Child" includes a child of a
domestic partner.
(c) A domestic work employer is not required to provide
compensation to a domestic work employee for accrued, unused paid
sick days upon termination, resignation, retirement, or other
separation from employment.
(d) A domestic work employer shall not require as a condition of
taking paid sick days that the domestic work employee search for or
find a replacement worker to cover the hours during which the
domestic work employee is on paid sick days.
(e) A domestic work employee aggrieved by a violation of this
section shall be entitled to all of the following:
(1) Reinstatement.
(2) The amount of any sick days unlawfully withheld.
(3) A penalty equal to the amount of the paid sick days unlawfully
withheld multiplied by three, or two hundred fifty dollars ($250),
whichever amount is greater.
(4) Appropriate equitable relief.
1465. (a) (1) A domestic work employee is entitled to written
notice of termination 21 days before his or her final day of
employment.
(2) If a domestic work employer does not provide notice of
termination as required by paragraph (1), the domestic work employee
is entitled to his or her wages for the period of violation, up to a
maximum of 21 days.
(b) A domestic work employer may terminate a domestic work
employee without providing the notice required in paragraph (1) of
subdivision (a) if the termination is based on the domestic work
employee causing intentional physical
or psychological harm to the person he or she cares for
or intentional physical damage to the work premises.
SEC. 4. Section 3351 of the Labor Code is amended to read:
3351. "Employee" means every person in the service of an employer
under any appointment or contract of hire or apprenticeship, express
or implied, oral or written, whether lawfully or unlawfully
employed, and includes:
(a) Aliens and minors.
(b) All elected and appointed paid public officers.
(c) All officers and members of boards of directors of
quasi-public or private corporations while rendering actual service
for the corporations for pay; provided that, where the officers and
directors of the private corporation are the sole shareholders
thereof, the corporation and the officers and directors shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151.
(d) Except as provided in subdivision (h) of Section
3352, any A person employed by the owner or
occupant of a residential dwelling whose duties are incidental to the
ownership, maintenance, or use of the dwelling, including the care
and supervision of children, persons of advanced age, or persons
with physical or mental disabilities, or whose duties are
personal and not in the course of the trade, business, profession, or
occupation of the owner or occupant.
(e) All persons incarcerated in a state penal or correctional
institution while engaged in assigned work or employment as
defined in paragraph (1) of subdivision (a) of Section 10021 of Title
8 of the California Code of Regulations, or engaged in
work performed under contract.
(f) All working members of a partnership or limited liability
company receiving wages irrespective of profits from the partnership
or limited liability company ; ,
provided that where the working members of the partnership or limited
liability company are general partners or managers, the partnership
or limited liability company and the partners or managers shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151. If a private
corporation is a general partner or manager, "working members of a
partnership or limited liability company" shall include the
corporation and the officers and directors of the corporation,
provided that the officers and directors are the sole shareholders of
the corporation. If a limited liability company is a partner or
member, "working members of the partnership or limited liability
company" shall include the managers of the limited liability company.
(g) For the purposes of subdivisions (c) and (f), the persons
holding the power to revoke a trust as to shares of a private
corporation or as to general partnership or limited liability company
interests held in the trust, shall be deemed to be the shareholders
of the private corporation, or the general partners of the
partnership, or the managers of the limited liability company.
SEC. 5. Section 3352 of the Labor Code is amended to read:
3352. "Employee" excludes the following:
(a) Any person defined in subdivision (d) of Section 3351 who is
employed by his or her parent, spouse, or child.
(b) Any person performing services in return for aid or sustenance
only, received from any religious, charitable, or relief
organization.
(c) Any person holding an appointment as deputy clerk or deputy
sheriff appointed for his or her own convenience, and who receives no
compensation from the county or municipal corporation or from the
citizens thereof for his or her services as the deputy. This
exclusion is operative only as to employment by the county or
municipal corporation and does not deprive any person so deputized
from recourse against a private person employing him or her for
injury occurring in the course of and arising out of the employment.
(d) Any person performing voluntary services at or for a
recreational camp, hut, or lodge operated by a nonprofit
organization, exempt from federal income tax under Section
101(6) 501 of the Internal Revenue Code, of
which he or she or a member of his or her family is a member and who
receives no compensation for those services other than meals,
lodging, or transportation.
(e) Any person performing voluntary service as a ski patrolman who
receives no compensation for those services other than meals or
lodging or the use of ski tow or ski lift facilities.
(f) Any person employed by a ski lift operator to work at a snow
ski area who is relieved of and not performing any prescribed duties,
while participating in recreational activities on his or her own
initiative.
(g) Any person, other than a regular employee, participating in
sports or athletics who receives no compensation for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, or other expenses incidental
thereto.
(h) Any person defined in subdivision (d) of Section 3351 who was
employed by the employer to be held liable for less than 52 hours
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412, or who earned
less than one hundred dollars ($100) in wages from the employer
during the 90 calendar days immediately preceding the date of the
injury for injuries, as defined in Section 5411, or during the 90
calendar days immediately preceding the date of the last employment
in an occupation exposing the employee to the hazards of the disease
or injury for injuries, as defined in Section 5412.
(i)
(h) Any person performing voluntary service for a
public agency or a private, nonprofit organization who receives no
remuneration for the services other than meals, transportation,
lodging, or reimbursement for incidental expenses.
(j)
(i) Any person, other than a regular employee,
performing officiating services relating to amateur sporting events
sponsored by any public agency or private, nonprofit organization,
who receives no remuneration for these services other than a stipend
for each day of service no greater than the amount established by the
Department of Personnel Administration as a per diem expense for
employees or officers of the state. The stipend shall be presumed to
cover incidental expenses involved in officiating, including, but not
limited to, meals, transportation, lodging, rule books and courses,
uniforms, and appropriate equipment.
(k)
(j) Any student participating as an athlete in amateur
sporting events sponsored by any public agency, public or private
nonprofit college, university or school, who receives no remuneration
for the participation other than the use of athletic equipment,
uniforms, transportation, travel, meals, lodgings, scholarships,
grants-in-aid, or other expenses incidental thereto.
(l)
(k) Any law enforcement officer who is regularly
employed by a local or state law enforcement agency in an adjoining
state and who is deputized to work under the supervision of a
California peace officer pursuant to paragraph (4) of subdivision (a)
of Section 832.6 of the Penal Code.
(m)
(l) Any law enforcement officer who is regularly
employed by the Oregon State Police, the Nevada Department of Motor
Vehicles and Public Safety, or the Arizona Department of Public
Safety and who is acting as a peace officer in this state pursuant to
subdivision (a) of Section 830.32 830.39
of the Penal Code.
(n)
(m) Any person, other than a regular employee,
performing services as a sports official for an entity sponsoring an
intercollegiate or interscholastic sports event, or any person
performing services as a sports official for a public agency, public
entity, or a private nonprofit organization, which public agency,
public entity, or private nonprofit organization sponsors an amateur
sports event. For purposes of this subdivision, "sports official"
includes an umpire, referee, judge, scorekeeper, timekeeper, or other
person who is a neutral participant in a sports event.
(o)
(n) Any person who is an owner-builder, as defined in
subdivision (a) of Section 50692 of the Health and Safety Code, who
is participating in a mutual self-help housing program, as defined in
Section 50087 of the Health and Safety Code, sponsored by a
nonprofit corporation.
SEC. 6. Section 3551 of the Labor Code is amended to read:
3551. (a) Every employer subject to the compensation provisions
of this code , except employers of employees defined in
subdivision (d) of Section 3351, shall give every new
employee, either at the time the employee is hired or by the end of
the first pay period, written notice of the information contained in
Section 3550. The content of the notice required by this section
shall be prescribed by the administrative director after consultation
with the Commission on Health and Safety and Workers' Compensation.
(b) The notice required by this section shall be easily
understandable and available in both English and Spanish. In addition
to the information contained in Section 3550, the content of the
notice required by this section shall include:
(1) Generally, how to obtain appropriate medical care for a job
injury.
(2) The role and function of the primary treating physician.
(3) A form that the employee may use as an optional method for
notifying the employer of the name of the employee's "personal
physician," as defined by Section 4600, or "personal chiropractor,"
as defined by Section 4601.
(c) The content of the notice required by this section shall be
made available to employers and insurers by the administrative
director. Insurers shall provide this notice to each of their
policyholders, with advice concerning the requirements of this
section and the penalties for a failure to provide this notice to all
employees.
SEC. 7. Section 3708 of the Labor Code is amended to read:
3708. In such action it is presumed that the injury to the
employee was a direct result and grew out of the negligence of the
employer, and the burden of proof is upon the employer, to rebut the
presumption of negligence. It is not a defense to the employer that
the employee was guilty of contributory negligence, or assumed the
risk of the hazard complained of, or that the injury was caused by
the negligence of a fellow servant. No contract or regulation shall
restore to the employer any of the foregoing defenses.
This section shall not apply to any employer of an employee, as
defined in subdivision (d) of Section 3351, with respect to such
employee, but shall apply to employers of employees described in
subdivision (b) of Section 3715, with respect to such employees.
SEC. 8. Section 3715 of the Labor Code is amended to read:
3715. (a) Any employee , except an employee as defined
in subdivision (d) of Section 3351, whose employer has
failed to secure the payment of compensation as required by this
division, or his or her dependents in case death has ensued, may, in
addition to proceeding against his or her employer by civil action in
the courts as provided in Section 3706, file his or her application
with the appeals board for compensation and the appeals board shall
hear and determine the application for compensation in like manner as
in other claims and shall make the award to the claimant as he or
she would be entitled to receive if the employer had secured the
payment of compensation as required, and the employer shall pay the
award in the manner and amount fixed thereby or shall furnish to the
appeals board a bond, in any amount and with any sureties as the
appeals board requires, to pay the employee the award in the manner
and amount fixed thereby.
(b) Notwithstanding this section or any other provision of this
chapter except Section 3708, any person described in subdivision (d)
of Section 3351 who is (1) engaged in household domestic service who
is employed by one employer for over 52 hours per week, (2) engaged
as a part-time gardener in connection with a private dwelling, if the
number of hours devoted to the gardening work for any individual
regularly exceeds 44 hours per month, or (3) engaged in casual
employment where the work contemplated is to be completed in not less
than 10 working days, without regard to the number of persons
employed, and where the total labor cost of the work is not less than
one hundred dollars ($100) (which amount shall not include charges
other than for personal services), shall be entitled, in addition to
proceeding against his or her employer by civil action in the courts
as provided in Section 3706, to file his or her application with the
appeals board for compensation. The appeals board shall hear and
determine the application for compensation in like manner as in other
claims, and shall make the award to the claimant as he or she would
be entitled to receive if the person's employer had secured the
payment of compensation as required, and the employer shall pay the
award in the manner and amount fixed thereby, or shall furnish to the
appeals board a bond, in any amount and with any sureties as the
appeals board requires, to pay the employee the award in the manner
and amount fixed thereby.
It is the intent of the Legislature that the amendments to this
section by Chapter 17 of the Statutes of 1977, make no change in the
law as it applied to those types of employees covered by this
subdivision prior to the effective date of Chapter 1263 of the 1975
Regular Session.
(c)
(b) (1) In any claim in which it
is alleged that the employer has failed to secure the payment of
compensation, the director, only for purposes of this section and
Section 3720, shall determine, on the basis of the evidence available
to him or her, whether the employer was prima facie illegally
uninsured. A finding that the employer was prima facie illegally
uninsured shall be made when the director determines that there is
sufficient evidence to constitute a prima facie case that the
employer employed an employee on the date of the alleged injury and
had failed to secure the payment of compensation, and that the
employee was injured arising out of, and occurring in the course of,
the employment.
(2) Failure of the employer to furnish
within 10 days the written statement in response to a written demand
for a written statement prescribed in Section 3711, addressed to the
employer at its address as shown on the official address record of
the appeals board, shall constitute in itself sufficient evidence for
a prima facie case that the employer failed to secure the payment of
compensation.
(3) A written denial by the insurer named in
the statement furnished by the employer as prescribed in Section
3711, that the employer was so insured as claimed, or the
nonexistence of a valid certificate of consent to self-insure for the
time of the claimed injury, if the statement furnished by the
employer claims the employer was self-insured, shall constitute in
itself sufficient evidence for a prima facie case that the employer
had failed to secure the payment of compensation.
(4) The nonexistence of a record of the
employer's insurance with the Workers' Compensation Insurance Rating
Bureau shall constitute in itself sufficient evidence for a prima
facie case that the employer failed to secure the payment of
compensation.
(5) The unrebutted written declaration under
penalty of perjury by the injured employee, or applicant other than
the employee, that the employee was employed by the employer at the
time of the injury, and that he or she was injured in the course of
his or her employment, shall constitute, in itself, sufficient
evidence for a prima facie case that the employer employed the
employee at the time of the injury, and that the employee was injured
arising out of, and occurring in the course of, the employment.
(d)
(c) (1) When the director
determines that an employer was prima facie illegally uninsured, the
director shall mail a written notice of the determination to the
employer at his or her address as shown on the official address
record of the appeals board, and to any other more recent address the
director may possess. The notice shall advise the employer of its
right to appeal the finding, and that a lien may be placed against
the employer's and any parent corporation's property, or the property
of substantial shareholders of a corporate employer as defined by
Section 3717.
(2) Any employer aggrieved by a finding of
the director that it was prima facie illegally uninsured may appeal
the finding by filing a petition before the appeals board. The
petition shall be filed within 20 days after the finding is issued.
The appeals board shall hold a hearing on the petition within 20 days
after the petition is filed with the appeals board. The appeals
board shall have exclusive jurisdiction to determine appeals of the
findings by the director, and no court of this state has jurisdiction
to review, annul, or suspend the findings or the liens created
thereunder, except as provided by Article 2 (commencing with Section
5950) of Chapter 7 of Part 4 of Division 4.
(e)
(d) (1) Any claim brought against
an employer under this section may be resolved by the director by
compromise and release or stipulated findings and award as long as
the appeals board has acquired jurisdiction over the employer and the
employer has been given notice and an opportunity to object.
(2) Notice may be given by service on the
employer of an appeals board notice of intention to approve the
compromise and release or stipulated findings and award. The employer
shall have 20 days after service of the notice of intention to file
an objection with the appeals board and show good cause therefor.
(3) If the employer objects, the appeals
board shall determine if there is good cause for the objection.
(4) If the appeals board finds good cause
for the objection, the director may proceed with the compromise and
release or stipulated findings and award if doing so best serves the
interest of the Uninsured Employers Fund, but shall have no cause of
action against the employer under Section 3717 unless the appeals
board case is tried to its conclusion and the employer is found
liable.
(5) If the appeals board does not find good
cause for the objection, and the compromise and release or stipulated
findings and award is approved, the Uninsured Employers Fund shall
have a cause of action against the employer pursuant to Section 3717.
(f)
(e) The director may adopt regulations to implement and
interpret the procedures provided for in this section.
SEC. 9. Section 4156 of the Labor Code is repealed.
4156. No liability for compensation shall attach to any employer
of a person excluded by subdivision (h) of Section 3352 from the
definition of "employee" for an injury to or the death of a person so
excluded which occurs on or after the effective date of this section
if such employer elected to come under the compensation provisions
of this division pursuant to subdivision (a) of Section 4151 prior to
the effective date of this section by purchasing or renewing a
policy providing comprehensive personal liability insurance
containing a provision for coverage against liability for the payment
of compensation, as defined in Section 3207 of the Labor Code, to
any person defined as an employee by subdivision (d) of Section 3351
of the Labor Code; provided, however, nothing in this section shall
prohibit an employer from providing compensation pursuant to the
provisions of this chapter.
SEC. 10. Section 6303 of the Labor Code is amended to read:
6303. (a) "Place of employment" means any place, and the premises
appurtenant thereto, where employment is carried on, except a place
where the health and safety jurisdiction is vested by law in, and
actively exercised by, any state or federal agency other than the
division.
(b) "Employment" includes the carrying on of any trade,
enterprise, project, industry, business, occupation, or work,
including all excavation, demolition, and construction work, or any
process or operation in any way related thereto, in which any person
is engaged or permitted to work for hire , except household
domestic service .
(c) "Employment," for purposes of this division only, also
includes volunteer firefighting when covered by Division 4
(commencing with Section 3200) pursuant to Section 3361.
(d) Subdivision (c) shall become operative on January 1, 2004.
SEC. 11. Section 6314 of the Labor Code is amended to read:
6314. (a) To make an investigation or inspection, the chief of
the division and all qualified divisional inspectors and
investigators authorized by him or her shall, upon presenting
appropriate credentials to the employer, have free access to any
place of employment to investigate and inspect during regular working
hours, and at other reasonable times when necessary for the
protection of safety and health, and within reasonable limits and in
a reasonable manner. The chief or his or her authorized
representative may, during the course of any investigation or
inspection, obtain any statistics, information, or any physical
materials in the possession of the employer that are directly related
to the purpose of the investigation or inspection, conduct any tests
necessary to the investigation or inspection, and take photographs.
Photographs taken by the division during the course of any
investigation or inspection shall be considered to be confidential
information pursuant to the provisions of Section 6322, and shall not
be deemed to be public records for purposes of the California Public
Records Act.
(b) If permission to investigate or inspect the place of
employment is refused, or the facts or circumstances reasonably
justify the failure to seek permission, the chief or his or her
authorized representative may obtain an inspection warrant pursuant
to the provisions of Title 13 (commencing with Section 1822.50) of
the Code of Civil Procedure. Cause for the issuance of a warrant
shall be deemed to exist if there has been an industrial accident,
injury, or illness reported, if any complaint that violations of
occupational safety and health standards exist at the place of
employment has been received by the division, or if the place of
employment to be inspected has been chosen on the basis of specific
neutral criteria contained in a general administrative plan for the
enforcement of this division.
(c) The chief and his or her authorized representatives may issue
subpoenas to compel the attendance of witnesses and the production of
books, papers, records, and physical materials, administer oaths,
examine witnesses under oath, take verification or proof of written
materials, and take depositions and affidavits for the purpose of
carrying out the duties of the division.
(d) In the course of any investigation or inspection of an
employer or place of employment by an authorized representative of
the division, a representative of the employer and a representative
authorized by his or her employees shall have an opportunity to
accompany him or her on the tour of inspection. Any employee or
employer, or their authorized representatives, shall have the right
to discuss safety and health violations or safety and health problems
with the inspector privately during the course of an investigation
or inspection. Where there is no authorized employee representative,
the chief or his or her authorized representatives shall consult with
a reasonable number of employees concerning matters of health and
safety of the place of employment.
(e) During any investigation of an industrial accident or
occupational illness conducted by the division pursuant to the
provisions of Section 6313, the chief or his or her authorized
representative may issue an order to preserve physical materials or
the accident site as they were at the time the accident or illness
occurred if, in the opinion of the division, it is necessary to do so
in order to determine the cause or causes of the accident or
illness, and the evidence is in potential danger of being removed,
altered, or tampered with. Under these circumstances, the division
shall issue that order in a manner that will avoid, to the extent
possible, any interference with normal business operations.
A conspicuous notice that an order has been issued shall be
prepared by the division and shall be posted by the employer in the
area or on the article to be preserved. The order shall be limited to
the immediate area and the machines, devices, apparatus, or
equipment directly associated with the accident or illness.
Any person who knowingly violates an order issued by the division
pursuant to this subdivision shall, upon conviction, be punished by a
fine of not more than five thousand dollars ($5,000).
(f) (1) In the case where the place of employment is a residential
dwelling, the chief of the division or his or her authorized
representative shall initiate telephone contact with the employer as
soon as possible, but not later than three working days after receipt
of a complaint charging a serious violation, as described in Section
6309, and not later than 14 calendar days after receipt of a
complaint charging a nonserious violation.
(2) When telephone contact is successfully made, the chief of the
division or his or her authorized representative shall do all of the
following:
(A) Notify the employer of the existence of any allegedly unsafe
or unhealthful conditions.
(B) Describe the alleged hazard and any specific
regulatory standard alleged to have been violated.
(C) Inform the employer that he or she is required pursuant to
Section 6401.7 to investigate and abate any hazard discovered during
the investigation.
(D) Inform the employer by letter sent by facsimile or electronic
mail, or by certified mail if the domestic work employer cannot
receive facsimile or electronic mail, of each alleged hazard and each
specific standard alleged to have been violated.
(E) Inform the employer that if the division determines that the
employer's response is unsatisfactory for any reason, the division
shall seek permission from the employer to enter the residential
dwelling to investigate the matter, and, if permission is denied, may
secure a court order to conduct an onsite inspection of the
residential dwelling.
(F) Provide the complainant with copies of the regulation alleged
to have been violated, the division's letter to the employer, and all
subsequent correspondence concerning the investigation of any
hazards.
(3) An employer subject to investigation shall do both of the
following:
(i) Provide to the division, within 14 days of the employer's
receipt of the division's letter, a letter describing the results of
the employer's investigation of the alleged hazards and a description
of all actions taken, in the process of being taken, or planned to
be taken, by the employer to abate the alleged hazard, including any
applicable measurements or monitoring results, invoices for equipment
purchased, and photographs or video that document correction of the
alleged hazard.
(ii) Provide a copy of the division's letter to the employer, and
all subsequent correspondence from and to the employer, to the
affected employee, or prominently post the letter and correspondence
in the method prescribed by subdivision (a) of Section 6318.
SEC. 12. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.