BILL ANALYSIS                                                                                                                                                                                                    Ó






                 Senate Committee on Labor and Industrial Relations
                                 Ted W. Lieu, Chair

          Date of Hearing: July 6, 2011                20011-2012 Regular 
          Session                              
          Consultant: Alma Perez                       Fiscal:Yes
                                                       Urgency: No
          
                                   Bill No: AB 889
                        Author: Ammiano and V. Manuel Perez 
                               Version: June 23, 2011
          

                                       SUBJECT
          
                               Domestic work employees


                                     KEY ISSUES

          Should the Legislature require that employers of domestic 
          workers İincluding childcare providers, caregivers of the sick, 
          convalescing, or elderly persons] provide their employee(s) with 
          overtime compensation for hours worked in excess of 8 hours a 
          day and 40 a week? 

          Should the Legislature require that employers of domestic 
          workers provide their employee(s) with duty-free meal and rest 
          periods? 

          Should an employer of a domestic worker who is employed for less 
          than 52 hours in a 90 day period be required to purchase 
          workers' compensation insurance for that employee? 

          Should the Legislature require employers to provide domestic 
          work employees with paid vacation benefits even though the same 
          is not required of other employers in the state? 

          
                                       PURPOSE
          
          To enact the Domestic Work Employee Equality, Fairness and 
          Dignity Act to regulate the wages, hours, and working conditions 
          of domestic work employees, as defined. 











                                      ANALYSIS
          
           Existing law  regulates the wages, hours and working conditions 
          of employees in the state 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  , it is the duty of the Industrial Welfare 
          Commission, within the Department of Industrial Relations, to 
          ascertain the wages, hours and working conditions of employees 
          in the state and promulgate rules, regulations and orders to 
          ensure that employers comply with those provisions of law.  
          (Labor Code §1173)

           Under existing law,  the Division of Labor Standards Enforcement 
          and the Office of the Labor Commissioner were established to 
          adjudicate wage claims, investigate discrimination and public 
          works complaints, and enforce Labor Code statutes and Industrial 
          Welfare Commission orders. 

           Existing law, for the provision of pay statements:
                  Provides that every employer must furnish each of his or 
               her employees with an accurate 
               itemized written statement at the time of each payment of 
               wages that shows, among other things, the name of the 
               employee, his or her gross and net wages earned, the total 
               hours worked, and all deductions. 
                 Provides that this requirement 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. (Labor Code §226)

           Existing law, for workers' compensation:
                  Requires employers to secure the payment of workers' 
               compensation for injuries incurred
               by their employees that arise out of and in the course of 
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               employment. Failure to secure workers' compensation as 
               required is a misdemeanor.

                 Defines "employee" İamong others] as 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, whose duties are personal and not in the course 
               of the trade, business, profession, or occupation of the 
               owner or occupant. (Labor Code §3351)

                 Provides that employers of persons who engage in 
               specified types of household domestic 
               service and who work less than 52 hours during the 90 
               calendar days immediately preceding the date of injury - or 
               who earn less than $100 in wages from the employer during 
               the 90 calendar days - are excluded from the definition of 
               employer and are therefore excluded from the requirement to 
               secure the payment of workers' compensation, as specified.  


                 No liability for compensation shall attach to any 
               employer of a person working these specified hours if such 
               employer elects to a) insure against liability by 
               purchasing or renewing a comprehensive insurance policy 
               containing a provision for coverage against liability for 
               his/her employees, or b) file with the administrative 
               director of the Division of Workers' Compensation, to the 
               effect that he/she accepts the workers' compensation 
               provisions of the division. 

           Existing law, for overtime:  
                 With certain exceptions, defines a day's work as eight 
               hours of labor.  Any additional hours worked must be 
               compensated with the payment of overtime, as follows: 
                  §         Any work in excess of eight hours in one 
                    workday, any work in excess of 40 hours in any one 
                    workweek, and the first eight hours worked on the 
                    seventh day of work in any one workweek shall be 
                    compensated at the rate of no less than one and 
                    one-half times the regular rate of pay for an 
                    employee;
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                  §         Any work in excess of 12 hours in one day 
                    shall be compensated at the rate of no less than twice 
                    the regular rate of pay for an employee; 

                  §         Any work in excess of eight hours on any 
                    seventh day of a workweek shall be compensated at the 
                    rate of no less than twice the regular rate of pay of 
                    an employee. 
           
          Existing law, for meal and rest periods:
                  Requires, with certain exemptions, that all employees 
               receive a meal break of 30 minutes 
               before the start of the 5th hour of work, unless the work 
               period is no more than six hours and both the employer and 
               the employee choose to waive the meal period by mutual 
               consent.  

                 Requires that if the work period is more than ten hours, 
               a second meal period of 30 
               minutes must also be granted to an employee.  This second 
               meal period can be waived by the mutual consent of the 
               employer and employee, but only if the work period is no 
               more than 12 hours, and the first meal period was not 
               waived.  

                 Requires that employers provide non-exempt employees 
               with rest breaks of 10 minutes
               for every four hours worked. 
                
                  Provides that if an employer fails to provide a 
               duty-free meal or rest period, the employer must give the 
               employee one hour of additional premium wages at the 
               employee's regular rate of compensation for each workday 
               that a meal period was not provided. (Labor Code §226.7) 

           Existing Wage Orders  , which are regulations established by the 
          Industrial Welfare Commission, allow for on-duty meal periods 
          where the employee is not relieved of work responsibilities, but 
          the employee is allowed to eat while they work.  An on-duty meal 
          period may only be taken if the nature of the work prevents an 
          employee from being completely relieved of work, or if the 
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          employee is employed in the Public Housekeeping Industry and 
          fall under the following circumstances: 

             a)   Has direct responsibility for children under 18 years of 
               age or who are not emancipated from the foster care system 
               and are receiving 24 hour residential care;

             b)   Works at a 24 hour residential care facility for the 
               elderly, blind or developmentally disabled and regulations 
               or law require it, or if the meal is provided at no charge 
               to the employee and the employee eats with the residents or 
               is in sole charge of the residents.

          All on-duty meal period agreements must be in writing, and the 
          employee may  revoke  the on- duty meal period agreement  at any 
          time  .
           This Bill  would enact the Domestic Work Employee Equality, 
          Fairness and Dignity Act (The Act) to regulate the wages, hours, 
          and working conditions of domestic work employees, as defined. 

          Specifically, this bill would: 

             1)   Provide the following definitions, among others:

               a.     "Domestic work" means services related to the care 
                 of persons in private households or maintenance of 
                 private households or their premises, including childcare 
                 providers, caregivers of sick, convalescing, or elderly 
                 persons, house cleaners, housekeepers, maids and other 
                 household occupations. 

               b.     "Domestic work employee" means an individual who 
                 performs domestic work (including live-in domestic work 
                 employees and personal attendants).  However, the term 
                 does not include (thereby exempting from the requirements 
                 of the bill):

                  §         In-Home Supportive Services program employees;
                  §         Specified family members;
                  §         A babysitter under 18 years of age;
                  §         A person employed by a licensed health 
                    facility;
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                  §         A person employed by an organization vendored 
                    or contracted through a regional center or the State 
                    Department of Development Services, as specified, to 
                    provide services and support for persons with 
                    development disabilities. 
                  §         A person who provides child care, as 
                    specified, if the parent or guardian of the child to 
                    whom child care is provided receives child care and 
                    development services pursuant to any program 
                    authorized under the Child Care and Development 
                    Services Act or the California Work Opportunity and 
                    Responsibility to Kids Act. 

               a.     "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. 

               b.     "Domestic work employer" means 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.

             1)   Establish specific employment rights for domestic work 
               employees that includes:

               a.     Right to overtime compensation, as specified. 

               b.     Right to meal and rest periods, as specified.

               c.     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.

               d.     A live-in domestic work employee shall not be 
                 required to work more than five days in any one workweek 
                 without a day off. Work in excess of this schedule shall 
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                 be compensated with the appropriate overtime. 

               e.     A live-in domestic work employee who is not required 
                 to be on duty for 24 consecutive hours shall have at 
                 least 12 consecutive hours free of duty, of which a 
                 minimum of eight are for uninterrupted sleep. 

               f.     Live-in domestic work employees and those who work 
                 for more than 24 consecutive hours shall be provided 
                 sleeping accommodations that are adequate, decent and 
                 sanitary.

               g.     A domestic work employer shall permit a domestic 
                 work employee who works five hours or more to choose the 
                 food he/she eats and to prepare his/her own meals.  A 
                 domestic work employer is required to permit a domestic 
                 work employee to use the job site's kitchen facilities 
                 and appliances without charge or deduction from pay. 

               h.     Right to accrue paid vacation benefits at a rate of 
                 not less than one hour per every 30 hours worked, to be 
                 used as specified, beginning at the commencement of 
                 employment or the operative date of these provisions, 
                 whichever occurs first.   

             1)   Provide that the Division of Labor Standards Enforcement 
               shall enforce the requirements of The Act and specifies 
               certain penalties and remedial provisions, including a 
               private right of action for enforcement, for the violation 
               of the aforementioned rights. 

             2)   Require employers of domestic workers to provide their 
               employees with semimonthly pay statements of their wages, 
               as specified. 

             3)   Eliminate the current provision in law that exempts 
               (from the requirement to carry workers' compensation) 
               employers of domestic workers who are employed less than 52 
               hours and earned less than $100 in the previous 90 days, 
               thereby, requiring workers' compensation coverage for these 
               employees. 

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             4)   Require that domestic worker employers give every new 
               employee written notice stating the name of the current 
               compensation insurance carrier of the employer, or when 
               such is the fact, that the employer is self-insured, and 
               who is responsible for claims adjustments. 

             5)   Extend to domestic workers a provision in workers' 
               compensation law that İin an action against the employer] 
               establishes a presumption 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. 

             6)   Make several legislative findings and declarations 
               regarding domestic workers.  
                                      COMMENTS

          
          1.  Need for this bill?

            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, and workers' compensation 
            for individuals working less than 52 hours in a 90 day period. 
            "Domestic workers" or "household workers" are generally 
            comprised of housekeepers, nannies and caregivers of children 
            and others, including the disabled and elderly, who work in 
            private households to care for the health, safety and 
            well-being of those under their care.

            A recent study of low-wage workers in Los Angeles County found 
            that nearly 75% of childcare workers and 35% of maids and 
            housekeepers were paid at an hourly rate lower than the 
            minimum wage.  Over 85% reported not being paid for all the 
            work they did.  And almost all (96%) of the home health care 
            workers, childcare workers, maids and housekeepers reported 
            not receiving overtime pay.  Among those employees who worked 
            enough hours to qualify for a meal break, over 90% reported 
            that their meal breaks were short, interrupted, or simply not 
            provided. "Wage Theft and Workplace Violations in Los Angeles: 
            The Failure of Employment and Labor Law for Low-Wage Workers" 
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            (Milkman, R. Gonzalez, A.L., V. et al. Institute for Research 
            on Labor and Employment, UCLA 2010) 

            The author and 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.  
            According to proponents, in the worst cases domestic workers 
            are verbally and physically abused or sexually assaulted, and 
            stripped of their privacy and dignity.

            On June 16, 2011, at the 100th International Labour Conference 
            (ILC of the United Nations) in Geneva, Switzerland the 192 
            governments, representative employer and worker organizations 
            adopted a historic set of international standards aimed at 
            improving the working conditions of tens of millions of 
            domestic workers worldwide.  The ILO standards set forth 
            recommendations stating that domestic workers around the world 
            who care for families and households must have the same basic 
            labor rights as those available to other workers.

            According to proponents, this bill is needed to set 
            industry-wide standards that will protect domestic workers, 
            create greater stability in the industry and improve the 
            quality of care for Californians. This bill would enact the 
            Domestic Work Employee Equality, Fairness and Dignity Act (The 
            Act) to regulate the wages, hours, and working conditions of 
            domestic work employees, as defined.

          2.  "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, an overtime exemption continues 
            to exist for "personal attendants" under IWC Wage Order 15.

             IWC Wage Order 15  
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            IWC Wage Order 15 applies to Household Occupations which is 
            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, meal and rest break requirements and 
            other provisions of Wage Order 15.   Therefore, "personal 
            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. A recent opinion letter 
            issued by the Division of Labor Standards Enforcement 
            (November 23, 2005. Donna M. Dell, State Labor Commissioner & 
            Chief) 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
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               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, 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.

             IWC Wage Order 5

             Wage Order 5 covers the Public Housekeeping Industry. Under 
            Wage Order 5, a "personal attendant" shall not be employed 
            more than (8) hours in any workday or more than 40 hours in 
            any workweek unless the employee receives overtime 
            compensation of one and one-half (1 ) times such employee's 
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            regular rate of pay. Wage Order 5 defines a "personal 
            attendant" 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."

          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 
            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.

          4.  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, 
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            the New York statute:

                     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.

            However, it should be noted that under the New York 
            legislation the term "domestic worker" does not include any 
            individual (a) working on a casual basis, (b) who is engaged 
            in providing companionship services, as defined by the FLSA 
            (discussed above), and who is employed by an employer or 
            agency other than the family or household using his or her 
            services, or (c) who is a relative through blood, marriage or 
            adoption, as defined.  In addition, under the New York 
            legislation, the term "employer" does not include any employer 
            with fewer than four persons in his or her employ. 

          5.  Staff Questions:  
            
            Under existing law, most employers of domestic workers are 
            required to secure workers' compensation insurance for their 
            employees. Current law excludes from the definition of 
            "employee," for workers' compensation purposes, any domestic 
            worker who was employed less than 52 hours during the 90 
            calendar days immediate preceding the date of injury, or who 
            earned less than $100 dollars in wages from the employer 
            during the 90 calendar days.  This is a very narrow exemption 
            on the requirement to secure workers' compensation and 
            basically applies to someone who occasionally performs duties 
            such as a babysitting. Additionally, current law requires an 
            employer who does not carry workers' compensation for these 
            employees to insure against liability by purchasing or 
            renewing a comprehensive insurance policy containing a 
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            provision for coverage for his/her occasional employee.  

            This bill would eliminate the current exemption therefore 
            requiring all employers of domestic workers to purchase 
            workers' compensation insurance regardless of how many hours 
            the employee works.  

            Should an employer of a domestic worker who is employed for 
            less than 52 hours in a 90 day period be required to purchase 
            workers' compensation insurance for that employee? 

            Existing law requires, with certain exemptions, that all 
            employees receive a meal break of 30 minutes before the start 
            of the 5th hour of work, unless the work period is no more 
            than six hours and both the employer and the employee choose 
            to waive the meal period by mutual consent.  Wage Order 15 
            exempts personal attendants, which includes the population 
            targeted with this bill, from this and other provisions.  This 
            bill would extend to domestic workers the benefits of meal and 
            rest periods. 

            Does special consideration need to be taken when implementing 
            meal and rest period requirements for a caregiver of a child, 
            disabled or elderly person who cannot be left unattended? How 
            could these provisions be implemented on a practical level? 
          
          6.  Proponent Arguments  :
            
            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 author argues that the role of domestic workers 
            is essential to California as it enables others to participate 
            in the workforce. Without these domestic workers our economy 
            would suffer and many Californians would be forced to forgo 
            their own jobs to address their household needs.  However, the 
            author contends, 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 
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            enjoy. 

            Proponents argue that current laws and exclusions are complex, 
            leaving employers and workers without any clear guidelines.  
            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 
            mistreatment from occurring behind closed doors, out of the 
            public eye.  Therefore, the author argues, this bill provides 
            domestic workers with industry-specific protections to use 
            kitchen facilities and cook their own food, and creates 
            standards for sleep, meal and rest periods, overtime and paid 
            vacations. Even domestic workers employed by agencies labor in 
            individual homes and deserve equal rights and labor 
            protections.  

            Similarly, proponents argue that this bill seeks to provide 
            industry-wide standards so that they can provide uniform 
            quality care to the individuals and homes with which they are 
            entrusted.  They believe this uniformity will increase the 
            quality of care and standardize the industry.  Finally, 
            proponents 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.

          7.  Opponent Arguments  :

            According to opponents, although the bill has been 
            significantly amended, there are still portions of the bill 
            that imposes irrational and impractical laws on working 
            parents who hire babysitters, nannies or caregivers for their 
            elderly parents. According to opponents, while the state 
            currently regulates such matters as minimum wage, overtime and 
            meal and rest periods, this bill would regulate labor and 
            employment issues that have historically, and properly, been 
            left to the employer and employee to negotiate.  

            Opponents are specifically concerned with the following: 

             ü    Meal and Rest Periods: 
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               Opponents argue that currently, Wage Order 15 appropriately 
               exempts employers of babysitters and elder care workers 
               from meal/rest and flex time requirements. They argue that 
               in 2001, the Industrial Wage Commission recognized the 
               unique nature of baby sitting and elder care and rightly 
               concluded that meal and rest breaks cannot be safely 
               applied to these professions.  According to opponents, this 
               bill would supersede Wage Order 15, by requiring meal and 
               rest breaks relieved of  all  duty, so if taken while a child 
               or sick elderly person is napping, the employer would be in 
               violation of the law if the child or sick elderly person 
               awakens and the caregiver attends to them during their 
               break.

             ü    Overtime:
               Opponents representing the disabled community are concerned 
               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, they argue, 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.  Additionally, they argue that many 
               low-income people with disabilities and their families, who 
               hire attendants, might have no choice but to either look 
               for more restrictive and expensive institutions or join the 
               underground economy and look for whatever caregivers they 
               can outside the law. Opponents suggest an exemption for 
               third party employers. 

             ü    Litigation and Right to Sue Working Parents:
               Under the bill, these domestic work employers would be 
               subject to the threat of litigation for any alleged 
               violation, including statutory penalties, attorney's fees, 
               and expert witness fees. Opponents argue that these burdens 
               will potentially force unlawful conduct by individuals who 
               simply cannot afford to satisfy the wage and hour 
               obligations required. 
               Additionally, opponents are concerned that the bill creates 
               a private right of action for violation of the bill, a 
               protection that no other class of workers - from 
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               agricultural laborers to garment manufacturers - has.  They 
               argue that working parents who hire a babysitter or elder 
               care giver for a Friday night dinner and a movie could be 
               vulnerable to thousands of dollars in legal fees and 
               punitive damages.   

             ü    Paid Vacation:
               This bill would require domestic work employers to provide 
               paid vacation to employees, a benefit that private sector 
               employers can unilaterally decide to offer or not, based 
               upon the cost involved and their ability to do so.  
               However, opponents argue, this bill would usurp an 
               employer's discretion on this issue and force them to 
               provide such benefits despite the cost or detrimental 
               impact it may have on the business's and/or individual 
               homeowner's ability to survive.  

             ü    Workers' Compensation:
               According to opponents, the workers' compensation 
               provisions in the bill eliminate a very narrow exemption in 
               existing law applicable when a person has worked less than 
               52 hours, or earned less than $100, in the 90 days 
               preceding the date of injury.  Persons who employ someone 
               this occasionally do not think of themselves as employers 
               and are not likely to purchase a workers' compensation 
               insurance policy. Opponents argue that under this bill, if 
               they do not do so, they can be sued with a presumption that 
               they negligently caused the injury, and their property can 
               be attached to secure the payment of compensation if they 
               do not meet the burden of proving that the injury was 
               caused by something other than work as their domestic 
               employee. 

             ü    Underground Economy:
               Opponents also argue that if the cost of home care is 
               drastically increased, 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.  They 
               argue that 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, financially, 
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               physically and/or emotionally.   

             ü    Impossible to Implement: 
               Opponents argue that this bill is almost impossible to 
               implement in a reasonable way as working parents would be 
               forced to 1) hire a second babysitter or elder caregiver to 
               fill in for the meal and rest breaks, which they argue is 
               difficult since most parents could not afford to hire a 
               second nanny, nor is it likely to find someone willing to 
               work only 1 hour per day to fill in during the meal and 
               rest breaks; 2) fire their nanny or elder caregiver and 
               place their child or senior in institutional daycare. 
               Opponents argue that many day care centers have years-long 
               waiting lists, and for elderly Californians that problem 
               will only be exacerbated by the widespread closure of Adult 
               Day Health Care centers.  Moreover, opponents argue, the 
               care of special needs children and sick elders is more 
               appropriate in the home setting rather than a setting with 
               less than one-to-one care; 3) fire their nanny or elder 
               caregiver, and have one of the working adults quit their 
               job to care for their child or sick relatives, thereby 
               completely eliminating one job and removing another 
               productive worker from the paid workforce.  

            Overall, opponents argue that the bill 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.  Oppoents believe that this bill is simply unworkable 
            and irrational.  According to opponents, forcing working 
            families to choose between complying with unreasonable laws 
            and providing the best care for their children and elderly 
            parents is unconscionable. 

          8.  Prior Legislation  :

            HR 11 (Ammiano and V.M. Perez) of 2011: Adopted
            This resolution recognizes March 30th as International 
            Domestic Workers' Day.  

            ACR 163 (V.M. Perez) of 2010: Res. Chapter 119. Statutes of 
            2010
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             This resolution encourages greater protections in federal and 
               state law for domestic workers. 
                  
            AB 2536 (Montanez) of 2006: Vetoed by the Governor 
             AB 2536 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.  In his veto 
               message, Governor Schwarzenegger
             stated the following:
               "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: Res. Chapter 37, Statutes of 2000
             This resolution declares each March 30 to be 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.



                                       SUPPORT
          
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          California Domestic Workers Coalition - Sponsor 
          9to5, National Association of Working Women
          Access INC. 
          Alameda Labor council, AFL-CIO (2)
          Alliance of White Anti-Racists Everywhere - Los Angeles
          American Civil Liberties Union 
          American Federation of State, County and Municipal Employees, 
          AFL-CIO, Local 3299
          Asian Americans for Civil Rights & Equality
          Asian Communities for Reproductive Justice
          Asian Immigrant Women Advocates
          Asian Pacific American Legal Center (2)
          Asian Pacific Environmental Network
          Asian Pacific Islander Equality - Northern California 
          Asian Pacific Islander Youth Promoting Advocacy & Leadership
          Assembly District 13 San Francisco 
          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 Americans
          California Coalition for Women Prisoners
          California Commission on the Status of Women
          California Communities United Institute 
          California Domestic Worker Coalition
          California Immigrant Policy Center
          California Labor Federation
          California Labor Foundation 
          California National Organization for Women
          California Nurses Association 
          California Partnership to end Domestic Violence 
          California Teamsters Public Affairs Council
          Canal Alliance
          Caring Hands Workers' Association 
          Causa Justa/Just Cause
          Central American Resource Center San Francisco 
          Chinese Progressive Association 
          City and County of San Francisco 
          City of Oakland
          Clergy and Laity United for Economic Justice of Los Angeles 
          Coalition for Humane Immigrant Rights of Los Angeles
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          Communities Actively Living Independent & Free
          Community Resources for Independent Living (2)
          Community United Against Violence
          Data Center
          East Bay Alliance for Sustainable Economy (2)
          Echo Park United Methodist Church
          Engineers and Scientists of California
          Equal Rights Advocates
          Filipino Advocates for Justice
          Filipino Community Center
          Filipino Migrant Center (2)
          Golden Gate University - Women's Employment Rights Clinic
          Hand in Hand: The Domestic Employers Association 
          Human Rights Commission
          Independent Living Services of Northern California 
          Individual Supporter (3)
          Institute of Popular Education of Southern California
          Interfaith Coalition for Immigrant Rights
          International Longshore and Warehouse Union
          Jewish Labor Committee
          Jobs with Justice San Francisco 
          Kehilla Community Synagogue
          Labor Project for Working Families
          Labor/Community Strategy Center
                                                                                         Latino Policy Coalition
          Lawyers' Committee for Civil Rights of the San Francisco Bay 
          Area 
          Legal Services for Prisoners with Children
          Lil Tokyo Fraternal Workers Association
          Long Beach Coalition for Good Jobs and a Healthy Community
          Maintenance Cooperation Trust Fund
          MEChA de Stanford
          Mexican American Legal Defense and Educational Fund
          Mission Neighborhood Health Center
          Mujeres Unidas y Activas
          National Alliance for Filipino Concerns, Northern California 
          National Center for Lesbian Rights 
          National Domestic Workers Alliance
          National Employment Law Project
          National Lawyers Guild Labor & Employment Committee  
          National Nurses Organizing Committee
          National Union of Healthcare Workers
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          Network in Solidarity with the People of Guatemala
          Office & Professional Employees 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 and Jewish Funds for Justice 
          Rosewood United Methodist Church
          San Francisco Board of Supervisors
          San Francisco Community College Federation of Teachers
          San Francisco Democratic Women in Action
          San Francisco Gray Panthers (5)
          San Francisco Labor Council
          San Francisco Living Wage Coalition
          San Francisco Youth Commission
          Senior Action Network
          Service Employees International Union 
          SEIU Local United Long Term Care Workers 
          SEIU United Helthcare Workers West 
          Services, Immigrant Rights & Education Network
          Silicon Valley Independent Living Center
          Stanford Labor Action Coalition
          The Women's Foundation of California
          Union Salvadorena de Estudiantes Universitarios
          UNITE HERE!
          United Educators of San Francisco
          United Food and Commercial Workers - Western States Conference
          United Healthcare Workers
          United Long Term Care Workers (2)
          Urban Habitat
          Utility Workers Union of America, Local 132
          Women in Transition Re-entry Project Inc.
          Worksafe, Inc. 
          

                                     OPPOSITION
          
          AARP
          Accredited Nursing Care
          Agility Health
          Amada Home Care
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          Association of Premier Nanny Agencies (3)
          At Home Care Solutions
          Aunt Ann's Homecare
          Aunt Ann's In House Staffing Agency 
          Bright Star Healthcare 
          California Association for Health Services at Home 
          California Chamber of Commerce
          California Foundation for Independent Living Centers
          California Supported Living Network
          Care to Stay Home
          Civil Justice Associations of California
          ComForcare Senior Services (3)
          Comfort Keepers (17)
          Competent Care Home Health Nursing (2)
          Craig Cares, Roseville
          Crunch Care 
          Dedicated Domestics, Nannies, Caregivers & Household Staff 
          Desert Arc
          DialMED Home Care (3)
          Disability Rights California
          Disability Rights Education and Defense Fund 
          Elder Care Guides
          Help United 
          Help Unlimited
          Help Unlimited HomeCare
          Heritage Senior Care Inc. (10)
          Hillendale Home Care
          Hillside Enterprises
          Hired Hands Inc. Homecare
          Home & Health Care Management 
          Home Instead (2)
          Home Professionals
          Homecare California
          Homecare Consultants Unlimited, Inc. (2)
          Homecare Specialists (2)
          Home Sweet Home Care of San Francisco 
          Independent Living Resource Center San Francisco 
          Independent Living Services of Northern California 
          Individual oppose (4)
          In-House Staffing
          Innovative Healthcare Consultants, Inc. (4)
          Interim HomeStyle Services, Grass Valley 
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          Kaweah Delta Home Care Services
          La Jolla Nurses Homecare
          Love to Live
          LWF Home Care Inc.
          Matched CareGivers (8)
          Medical Home Care Professionals (6)
          National Private Duty Association, Northern California Chapter 
          Northern and Southern California Chapters of the National 
          Private Duty Association 
          Nursing & Rehab at Home
          Option One
          Oxford Services
          PFC Information Services, Inc.
          Pioneer Home Health Care
          Rent-a-Parent
          Right at Home (4)
          Rx Staffing & Home Care, Sacramento 
          Select Homecare
          SENCARE Inc. (2)
          Senior Helpers (4)
          Silicon Valley Independent Living Center
          Southwest Health Care Services, Inc.
          St. Joseph Health System Home Health Agency
          Stanford Park Nannies
          Synergy Homecare, San Diego
          The Arc and United Cerebral Policy in California 
          Town and Country Resources
          United Cerebral Palsy
          Visiting Angels (11)
          Westside Nannies
          140 - Individuals










          Hearing Date:  July 6, 2011                              AB 889  
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          Senate Committee on Labor and Industrial Relations