BILL ANALYSIS Ó
AB 889
Page A
Date of Hearing: April 13, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 889 (Ammiano) - As Amended: April 6, 2011
(Corrected)
SUBJECT : Domestic work employees.
SUMMARY : Enacts the Domestic Work Employee Equality, Fairness
and Dignity Act. Specifically, this bill :
1)Defines "domestic work" to mean services related to the care
of persons in private households or maintenance of private
households or their premises.
2)Defines "domestic work employee" as an individual who performs
domestic work (including live-in domestic work employees and
personal attendants). The term does not include In-Home
Supportive Services program employees, specified family
members, or minor babysitters.
3)Defines a "domestic work employer" as a person who (including
through the services of a third-party employer) employs or
exercises control over the wages, hours or working conditions
of a domestic work employee.
4)Establishes specific employment rights for domestic work
employees, including the following:
a) A domestic work employee shall be entitled to overtime
after eight hours in a workday or 40 hours in a workweek.
b) 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 of uninterrupted sleep except in an
emergency.
c) A live-in domestic work employee shall not be required
to work more than five days in any one workweek without a
day off.
d) Live-in domestic work employees and those who work for
more than 24 consecutive hours shall be provided sleeping
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accommodations that are adequate, decent and sanitary.
e) A domestic work employee shall earn an annual wage
increase equal to the percentage increase in the Consumer
Price Index for urban wage earners and clerical workers.
f) A domestic work employee is entitled to meal and rest
periods, as specified.
g) 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.
h) A domestic work employee shall accrue paid vacation
benefits as specified.
i) A domestic work employee shall accrue paid sick days, as
specified.
j) A domestic work employee is entitled to written notice
of termination 21 days before his or her final day of
employment, except where the termination is based on the
employee causing intentional physical or psychological harm
or damage to the work premises.
5)Specifies certain penalties and remedial provisions, and
provides for a private right of action for enforcement, of the
aforementioned rights.
6)Eliminates the current requirement that domestic workers must
work at least 52 hours and earn more than $100 in the previous
90 days to be eligible for worker's compensation coverage.
7)Eliminates the exemption in current occupational safety and
health law for "household domestic service" and establishes a
specific enforcement protocol for the Division of Occupational
Safety and Health where the place of employment is a
residential dwelling.
8)Makes other related and conforming changes.
9)Makes related legislative findings and declarations.
FISCAL EFFECT : Unknown
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COMMENTS : This bill proposes to enact the "Domestic Work
Employee Equality, Fairness and Dignity Act."
General Background on Domestic Workers
"Domestic workers" or "household workers" are generally
comprised of housekeepers, nannies and caregivers of children
and others who work in private households to care for the
health, safety and well-being of those under their care.
A recent study generally summarizes the general status of
domestic workers as follows:
"ÝDomestic] workers work in the private homes of their
employers, performing tasks such as in-home child, patient,
and elder care, housework, and cooking. They are primarily
female immigrants; some live in the home of their employer
working around the clock, while others work in various
households where the work is temporary and sporadic. Many
are 'unaffiliated' workers, meaning they have no connection
to a hiring or temporary agency. The independent, private,
often isolated nature of domestic labor means that
household workers often lack information about their rights
or knowledge of the laws of this country and are frequently
exploited by employers. Those who are undocumented live in
constant fear of being deported. While supporting their
employers' homes and families, household workers frequently
find themselves working in substandard and often
exploitative conditions, earning poverty wages too low to
support their own families, and lacking access to basic
health care. Their vulnerable situation subsidizes the
productivity and affluence of the U.S. economy and yet this
occupation is little understood and marginalized by the
larger society and policymakers."<1>
Advocates contend that 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 income. In the worst cases
domestic workers are verbally and physically abused or sexually
assaulted, and stripped of their privacy and dignity.
---------------------------
<1> "Behind Closed Doors: Working Conditions of California's
Household Workers." Mujeres Unidas y Activas, Day Labor Program
Women's Collective of La Raza Centro Legal, Data Center (March
2007), p. 2.
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Treatment Under Federal and State Labor Laws
In general, domestic workers are largely excluded from some of
the more basic protections afforded to other workers under state
and federal law, including the rights to overtime wages, safe
and healthy working conditions, workers' compensation,
employment discrimination and the right to engage in collective
bargaining.
One useful analysis includes the following overview of the
treatment of domestic workers uder California law:
"In California, 'all persons employed in household
occupations, whether paid on a time, piece rate,
commission, or other basis' are entitled to be paid the
state minimum wage. Live-in domestic workers cannot be
charged for food or housing without a voluntary, written
agreement. Like its federal counterpart, California wage
and hour laws exclude personal attendants. However,
personal attendants, whether live-in or not, are entitled
to the California minimum wage if they spend more than
twenty percent of their time doing other housework.
Non-live-in domestic workers are entitled to overtime pay
under California law under the same conditions as under
federal law; however, in California such workers are also
entitled to rest periods. Ten minute rest periods and a
thirty minute meal period are considered on-duty and
counted as time worked, unless the employee is relieved of
all duty during the meal period.
Live-in domestic workers are entitled to overtime only if
they work more than nine hours in a workday or if they work
on the sixth or seventh workday. These workers must be
given at least 12 consecutive off-duty hours on any
workday. Work during off duty time is compensable as
overtime. Personal attendants are not entitled to meal
breaks or rest breaks.
All domestic workers in California are entitled to be free
from sexual harassment.
Many domestic workers are entitled to workers' compensation
benefits if they are injured on the job. To qualify for
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benefits under California's Worker Compensation Law,
domestic workers must work more than 52 hours during the 90
days prior to injury and must have earned $100 or more
during the same 90 days.
Though rights and protections are relatively broad in
California, domestic workers still do not enjoy the full
complement of employment protections provided to most of
the state's workers. Domestic workers may suffer
discrimination, since California's Fair Employment and
Housing Act only prohibits employers with five or more
employees from discrimination on the basis of race, sex,
religion, national origin, pregnancy, age, disability,
marital status, sexual orientation, gender identity, or on
the basis of an English only policy. California
occupational safety and health law excludes 'household
domestic service.' Domestic workers who provide 'domestic
service in a private home' are excluded from obtaining
unemployment insurance benefits unless the worker was paid
$1000 or more in any calendar quarter in the calendar year
or the preceding year. Undocumented immigrant workers are
not eligible to collect unemployment insurance in
California.
California employment and labor law provides most domestic
workers with minimum wages and maximum hours, workers'
compensation for injuries on the job, and protection from
sexual harassment. However, domestic workers in California
are left without many of the basic legal protections
afforded to other workers in this state."<2>
Spotlight on Overtime Protection Under California Law
As discussed above, domestic workers are excluded from most
labor and employment law protections under California law.
However, the payment of overtime is one particular issue of
disparity that has garnered significant attention in recent
years - and is therefore worth addressing in some detail.
Under existing law for most non-exempt employees, any work in
excess of eight hours day, in excess of 40 hours a week, and the
---------------------------
<2> Left Out: Assessing the Rights of Migrant Domestic Workers
in the United States, Seeking Alternatives." Human Rights
Center, UC Berkeley International Human Rights Clinic, Boalt
Hall School of Law (November 2003), pp. 5-7.
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first eight hours on the seventh day of work must be compensated
at no less than one and one-half times the regular rate of pay.
Existing law also requires that any work in excess of 12 hours a
day and in excess of eight hours on the seventh day of work are
to be compensated at no less than twice the regular rate of pay.
Treatment of "Personal Attendants" Under the Industrial Welfare
Commission Wage Orders
In 1986, the Industrial Welfare Commission (IWC) adopted a
complete exemption from the overtime provisions and other
requirements of the Wage Orders for individuals employed as
"personal attendants." The minimum wage exemption was
eliminated on January 1, 2001 thereby entitling "personal
attendants" to the state minimum wage for all hours worked.
However, as discussed below, a partial or complete overtime
exemption continues to exist for "personal attendants" under the
IWC Wage Orders.
1. IWC Wage Order 15
IWC Wage Order 15 applies to "household occupations," defined as
all services related to the care of persons or maintenance of a
private household or its premises by an employee of a private
householder.
Under Wage Order 15, "personal attendants" are defined as
including:
"babysitters and means any person employed by a private
householder or by
any third party employer recognized in the health care
industry to work in a
private household, to supervise, feed, or dress a child or
person who by reason
of advanced age, physical disability, or mental deficiency
needs supervision."
"Personal attendants" are completely exempt from the general
overtime requirements of Wage Order 15. Therefore, "personal
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attendants" are only required to be paid straight-time for all
hours worked, regardless of whether they work more than eight
hours in a day or 40 hours in a week.
Wage Order 15 also specifies that the status of "personal
attendant" shall apply when no significant amount of work other
than the foregoing is required. This limitation is intended to
prevent the overtime exemption from applying to employees who
work in households but who are not "personal attendants". Under
this limitation, an employee who performs some of the work of a
"personal attendant" but also a significant amount of other work
falls outside of the exemption.
A recent opinion letter issued by the Division of Labor
Standards Enforcement (DLSE) that sought to clarify the
definition of "personal attendants" under Wage Order 15 stated
the following:
"We cannot provide you with a comprehensive list of
acceptable duties for
a personal attendant. However, it is instructional, and
not inconsistent with
the long standing DLSE position, to consider those duties
included by the U.S.
Department of Health and Human Services National Center for
Health Statistics'
definitions for activities of daily living. Such
activities relate to personal care
and include, but are not limited to, such duties as
bathing, showering, getting in
or out of a bed or chair and using a toilet. 'Supervising'
may also include
assistance in obtaining medical care, preparing meals,
managing money, shopping for groceries and personal items,
using a telephone or performing housework when such
activities are related to the independent living of the
person and cannot be performed by him or herself alone due
to a health or age limitation. It must be noted, however,
that any general housekeeping duties performed should not
exceed 20% of the weekly working time spent by the personal
attendant to maintain his or her exemption under IWC Wage
Order 15."
Wage Order 15 also has specific provisions related to "live-in"
household employees who are not "personal attendants." First,
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Wage Order 15 specifies that a live-in employee shall have at
least 12 consecutive hours free of duty during each workday of
24 hours, and the total span of hours for a workday shall be no
more than 12 hours. Wage Order 15 also specifies that a live-in
employee shall have at least three hours free of duty during the
12 hour span of work. Finally, a live-in employee who works
during scheduled off-duty hours or during the 12 consecutive
off-duty hours is entitled to overtime for such hours.
The net result is that a live-in employee essentially works a
nine hour day and is entitled to overtime for any hours worked
beyond that. However, as discussed above, an employee who is a
"personal attendant" is completely exempt from overtime under
Wage Order 15.
2. IWC Wage Order 5
Wage Order 5 (which covers the "public housekeeping" industry)
contains a partial overtime exemption for "personal attendants"
that is narrower than the exemption contained in Wage Order 15
and applies to individuals employed by nonprofit organizations.
Under Wage Order 5, a "personal attendant" is defined as
including:
"babysitters and means any person employed by a non-profit
organization covered by this order to supervise, feed or
dress a child or person who by reason of advanced age,
physical disability or mental deficiency needs
supervision."
Under Wage Order 5, a "personal attendant" may work up to 40
hours and six days in a workweek without overtime. Therefore,
"personal attendants" under Wage Order 5 may work over eight
hours in a day without receiving overtime, as long as their
total hours for the week do not exceed 40.
3. Federal Exemption for "Companions"
It may also be useful to point out the federal exemption for
"companions" under the Fair Labor Standards Act (FLSA), which is
much broader than the exemption under state law.
The FLSA provides an exemption to minimum wage and overtime
requirements for individuals employed in domestic service
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employment to provide babysitting services on a casual basis, or
to provide companionship services for individuals who are unable
to care for themselves because of age or infirmity. Companion
services include "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. It does not include services that require and are
performed by trained personnel, such as a registered nurse or a
practical nurse.
FLSA regulations state that companionship services may include
household work related to the care of the aged or infirm person
such as meal preparation, bed making, washing clothes, and other
similar services. Companions may perform general household work
as long as such work is incidental and does not exceed 20
percent of the total weekly hours worked. Household work
related to the care of the individual is not counted towards
this 20 percent limitation.
RECENT OVERSIGHT HEARING
On June 9, 2010, this Committee convened an oversight hearing
entitled, "Behind Closed Doors: Working Conditions of California
Domestic Workers." That hearing featured testimony by domestic
workers, academics, lawyers, worker advocates, public health
officials and others. The hearing explored in detail the
working conditions of domestic workers in California and the
status of state and federal laws that apply (or do not apply) to
domestic workers.
RECENT NEW YORK STATE LEGISLATION :
On July 1, 2010, the New York State Legislature passed the
first-in-the-nation domestic worker "bill of rights." The bill
was signed by Governor Paterson on August 31, 2010 and went into
effect on November 29, 2010.
Among other things, the New York statute:
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Establishes an eight hour workday and overtime after 40
hours a week for live-out domestic workers (44 hours for
live-in domestic workers).
Provides for one day of rest each calendar week.
Provides for three paid days off after one year of
employment.
Establishes protection against workplace discrimination
based on race, gender, sexual orientation, national origin,
disability, marital status and domestic violence victim
status.
Establishes protection against sexual harassment by the
employer.
It should be noted that under the New York legislation the term
"domestic worker" is defined to exclude any worker who provides
companionship services and "who is employed by an employer or
agency other than the family or household using his or her
services."
ARGUMENTS IN SUPPORT :
According to the author, in California there are around 200,000
domestic workers who serve as housekeepers, nannies, and
caregivers in private homes. Domestic workers are primarily
immigrant women who work in private households in order to
provide for their own families as the primary income earner.
The role of domestic workers is essential to California as it
enables others to participate in the workforce. Without these
domestic workers many Californians would be forced to forgo
their own jobs to address their household needs, the result
being that the well-being of many California families and the
economy as a whole would suffer.
However, the author states that, despite the importance of their
work, domestic workers have historically received wages well
below the poverty line and continue to be excluded from some of
the most fundamental labor protections other Californian workers
enjoy. Domestic workers have historically been exempted from
laws governing the rights afforded to other workers - decent
wages, a safe and healthy workplace health, workers compensation
and other labor protections.
The author notes that domestic workers are among the most
isolated and vulnerable workforce in the state. The unique
nature of their work requires protections to prevent abuse and
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mistreatment from occurring behind closed doors, out of the
public eye. Therefore, this bill provides domestic workers with
industry-specific protections to use kitchen facilities and cook
their own food, and creates standards for sleep, sick days,
living wage increases, and paid vacations.
Similarly, supporters argue that this bill would extend equal
rights to domestic workers and standardize an industry made
largely invisible. Domestic workers are the backbone of the
economy yet they have been excluded from basic labor laws. This
bill seeks to provide domestic workers with equal labor rights
and industry-wide standards so that they can provide quality
care to the individuals and homes with which they are entrusted.
Supporters contend that this bill simplifies the law and
provides uniform protection to all domestic workers. They
believe this uniformity will increase the quality of care and
standardize the industry.
Finally, supporters state that domestic workers are the bedrock
of our society - they do the work that makes all other work
possible. This bill will not only protect this significant and
valuable workforce, but also will invest in the wellbeing of
Californian's families and homes.
ARGUMENTS IN OPPOSITION :
The California Association for Health Services at Home (CAHSAH)
strongly opposes this bill, arguing that it would significantly
increase the cost of home care for seniors, people with
disabilities, and other frail Californians, and would further
strengthen an already dangerously large underground economy.
CAHSAH states that hundreds of thousands of Californians depend
on home care services to keep them safe and healthy in their
home and to avoid institutionalization. Their specific and
unique needs require flexibility in how a home care company can
best provide care, and this has long been accomplished through
certain exemptions in labor law which keep the cost of care
affordable and allow for continbuity of care. In this economic
downturn it can be especially challenging for seniors to
continue to pay for the care, particularly if they require 24
hour live-in assistance.
CAHSAH contends that this bill proposes to drastically increase
the cost of care by overturning these longstanding exemptions
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and adding additional liabilities and costly burdens such as
paid vacation days, paid sick days, mandatory wage increases,
and a 21-day notice of termination.
CAHSAH notes that there is already a robust underground economy
in home care where neither the consumer nor the worker has any
protections against financial, physical, or emotional abuse.
The underground economy has no oversight, taxes are not paid,
liability is not covered, and it often leads to one side taking
advantage of the other. If the cost of home care is drastically
increased, as proposed in this bill, CAHSAH argues that the
price difference between legitimate home care companies and the
underground option will widen and the underground economy will
dramatically grow, at a detriment to all stakeholders involved.
Finally, CAHSAH concludes that if this bill passes, significant
regulatory burdens will be placed on the home care industry,
causing the job growth in this sector, which California has
benefited from, to come to a halt.
The California Disability Services Association (CDSA) also
opposes this measure. Among other things, CDSA states that
changing the current system would result in disruptive shift
changes. Service providers could not afford to pay overtime for
periods beyond eight hours. The solution would be a required
shift change - in the middle of the night. In other words, a
person would go to sleep with one support staff and wake up with
another - a change that is both disruptive and unsettling for
many vulnerable individuals.
Moreover, CDSA contends that there is simply no funding
available to implement these proposals. Unless the Legislature
is prepared to provide tens of millions of dollars to fund these
requirements, CDSA argues that it is unfeasible and potentially
disastrous to impose these conditions on the organizations that
provide these vitally important services.
PRIOR AND RELATED LEGISLATION :
HR 11 (Ammiano) of 2011 recognizes March 30th as International
Domestic Workers' Day. HR 11 was heard before this Committee on
March 30, 2011.
ACR 163 (V. Manuel Perez) of 2010 encouraged greater protections
in federal and state law for domestic workers.
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AB 2536 (Montanez) of 2006 was the most ambitious legislation
aimed at these issues in recent history. As introduced, AB 2536
would have eliminated the overtime exemption under California
law for most "personal attendants." There was significant
opposition, and the bill was subsequently narrowed to generally
apply only to nannies.
AB 2536 was vetoed by Governor Schwarzenegger, who stated the
following in his veto message:
"This bill would require overtime payment for personal
attendants who are nannies. The existing overtime
exemption was intended to keep these jobs above ground and
to allow those in need of such services to find assistance
at a price they can afford. Removing this exemption would
dramatically increase the costs of these attendants and
potentially drive employment underground.
I am also concerned that this bill creates new liquidated
damages penalties against employers of all household
workers, not merely nannies. In short, this bill subjects
seniors and the severely disabled who hire household
workers to a new cause for civil litigation. Given the
increase in frivolous labor law litigation in recent years,
I cannot support subjecting seniors and the disabled to
additional liability."
ACR 141 (Cedillo) of 2000 which declared March 30 as Domestic
Worker Appreciation Day in recognition of all domestic workers
for their hard work and dedication, their contribution to the
stability and well-being of the Californian family household,
and their often overlooked contributions to California's
economy.
REGISTERED SUPPORT / OPPOSITION :
Support
9to5 National Association of Working Women
AD 13 San Francisco
Alameda Labor Council, AFL-CIO
American Civil Liberties Union
American Federation of State, County and Municipal Employees,
Local 3299
American Federation of Teachers, Local 2121
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Asain Pacific Islander Equality, Northern California
Asian Americans for Civil Rights & Equality
Asian Communities for Reproductive Justice
Asian Immigrant Women Advocates
Asian Pacific American Legal Center
Asian Pacific Environmental Network
Asian/Pacific Islander Youth Promoting Advocacy and Leadership
AWARE-LA
Berkeley-East Bay Gray Panthers
Black Alliance for Just Immigration
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
CA Official Court Reporters Association
California Alliance for Retired American
California Coalition for Women Prisoners
California Communities United Institute
California Employment Lawyers Association
California Immigrant Policy Center
California Labor Federation, AFL-CIO
California Legal Rural Assistance Foundation
California Nurses Association/National Nurses Organizing
Committee
California Teamsters Public Affairs Council
Canal Alliance
CARECEN
Caring Hands Workers' Association
Causa Justa: Just Cause
Center for Independence of Individuals with Disabilities of San
Mateo County
Center for Young Women's Development
Clergy and Laity United for Economic Justice of Los Angeles
Coalition for Humane Immigrant Rights of Los Angeles
Community Actively Living Independent & Free
Community Resources for Independent Living
Community United Against Violence
Data Center
DataCenter
East Bay Alliance for a Sustainable Economy
Echo Park United Methodist Church
Edward Chiera Associates
Elizabeth Russell, MA
Engineers and Scientists of California
Enlace
Equal Rights Advocates
Filipino Advocates for Justice
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Filipino Migrant Center
Golden Gate University School of Law Women's Employment Rights
Clinic
Hand in Hand-Domestic Employers Association
Interfaith Coalition for Immigrant Rights
International Longshore and Warehouse Union
Jobs with Justice San Francisco
Kehilla Community Synagogue
Labor Project for Working Families
Labor/Community Strategy Center
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
Lil Tokyo Fraternal Workers Association
Maintenance Cooperation Trust Fund
Mission Neighborhood Health Center
Mujeres Unidas y Activas
National Center for Lesbian Rights
National Domestic Workers Alliance
National Lawyers Guild Labor & Employment Committee
National Lawyers Guild, San Francisco Bay Area Chapter
National Union of Healthcare Workers
Network in solidarity With the People of Guatemala
Office & Professional Employees International Union, Local 3
Organizacion en California de Lideres Campesinas, Inc.
People Organized to Win Employment Rights, POWER
Pilipino Workers Center of Southern California
Planning for Elders
Professional and Technical Engineers, Local 21
Progressive Jewish Alliance
San Francisco Gray Panthers
San Francisco Labor Council
San Francisco Living Wage Coalition
SEIU United Healthcare Workers West
Service Employees International Union, California
Services, Immigrant Rights & Education Network
Silicon Valley Independent Living Center
The Women's Foundation of California
UNITE HERE!
UNITE HERE, Local 2850
United Educators of San Francisco
United Food and Commercial Workers-Western States Conference
United Long Term Care Workers
Urban Habitat
USEU
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Utility Workers Union of America, Local 132
Women in Transition Re-Entry Project, Inc.
Worksafe, Inc.
Support if Amended
The Arc
United Cerebral Palsy, California
Opposition
Aunt Ann's Agency
California Association for Health Services at Home
California Chamber of Commerce
California Disabilities Services Association
California Respite Association
Civil Justice Associations of California
Dedicated Domestics
Full Circle of Choices
Harmony Home, Associated
INALLIANCE
Inclusive Community Resources, LLC
PathPoint
PFC Information Services
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091