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 Ýincluding 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 2 Senate Committee on Labor and Industrial Relations employment. Failure to secure workers' compensation as required is a misdemeanor. Defines "employee" Ýamong 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; Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 3 Senate Committee on Labor and Industrial Relations § 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 4 Senate Committee on Labor and Industrial Relations 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; Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 5 Senate Committee on Labor and Industrial Relations § 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 6 Senate Committee on Labor and Industrial Relations 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. Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 7 Senate Committee on Labor and Industrial Relations 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 Ýin 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" Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 8 Senate Committee on Labor and Industrial Relations (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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 9 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 10 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 11 Senate Committee on Labor and Industrial Relations 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, Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 12 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 13 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 14 Senate Committee on Labor and Industrial Relations 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: Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 15 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 16 Senate Committee on Labor and Industrial Relations 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, Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 17 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 18 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 19 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 20 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 21 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 22 Senate Committee on Labor and Industrial Relations 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 Hearing Date: July 6, 2011 AB 889 Consultant: Alma Perez Page 23 Senate Committee on Labor and Industrial Relations 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 Consultant: Alma Perez Page 24 Senate Committee on Labor and Industrial Relations