BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 889|
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THIRD READING
Bill No: AB 889
Author: Ammiano (D), et al.
Amended: 8/22/12 in Senate
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM. : 5-1, 7/6/11
AYES: Lieu, DeSaulnier, Leno, Padilla, Yee
NOES: Wyland
NO VOTE RECORDED: Runner
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/16/12
AYES: Kehoe, Alquist, Lieu, Price, Steinberg
NOES: Walters, Dutton
ASSEMBLY FLOOR : 49-28, 6/2/11 - See last page for vote
SUBJECT : Domestic work employees
SOURCE : California Domestic Workers Coalition
DIGEST : This bill, no later than January 1, 2014, the
Department of Industrial Relations (DIR) shall adopt
regulations governing the working conditions of domestic
work employees, as defined. The regulations adopted
pursuant to this section shall provide for all of the
following: (1) overtime compensation, (2) meal and rest
periods, and (3) uninterrupted sleep periods and
compensation for interruptions. The DIR may apply the
provisions of Industrial Welfare Commission Wage Order 15
to domestic work employees. In adopting regulations
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pursuant to this section, the DIR shall do all of the
following: (1) study the economic impact of the
regulations, and (2) review and consider federal policies
regarding domestic work employees.
ANALYSIS : Existing law regulates the wages, hours, and
working conditions of any man, woman, and minor employed in
any occupation, trade, or industry, whether compensation is
measured by time, piece, or otherwise, except for
individuals employed as outside salesmen and individuals
participating in specified national service programs. Under
existing law, the Industrial Welfare Commission within the
Department of Industrial Relations is authorized to adopt
rules, regulations, and orders to ensure that employers
comply with those provisions of law.
This bill, no later than January 1, 2014, the Department of
Industrial Relations (DIR) shall adopt regulations
governing the working conditions of domestic work
employees, as defined. The regulations adopted pursuant to
this section shall provide for all of the following: (1)
overtime compensation, (2) meal and rest periods, and (3)
uninterrupted sleep periods and compensation for
interruptions. The DIR may apply the provisions of
Industrial Welfare Commission Wage Order 15 to domestic
work employees. In adopting regulations pursuant to this
section, the DIR shall do all of the following: (1) study
the economic impact of the regulations, and (2) review and
consider federal policies regarding domestic work
employees.
Comments
Domestic workers have historically been exempted from laws
governing the rights afforded to other workers - decent
wages, a safe and healthy workplace health, workers
compensation and other labor protections. 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. This
bill provides domestic workers with industry-specific
protections to use kitchen facilities and cook their own
food, and creates standards for sleep.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/22/12)
California Domestic Workers Coalition (source)
9to5, National Association of Working Women
Access INC.
Alameda Labor council, AFL-CIO
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 and Equality
Asian Communities for Reproductive Justice
Asian Immigrant Women Advocates
Asian Pacific American Legal Center
Asian Pacific Environmental Network
Asian Pacific Islander Equality - Northern California
Asian Pacific Islander Youth Promoting Advocacy and
Leadership
Assembly District 13 San Francisco
Berkeley-East Bay Gray Panthers
Black Alliance for Just Immigration
California Alliance for Retired Americans
California Coalition for Women Prisoners
California Commission on the Status of Women
California Communities United Institute
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
California Domestic Worker Coalition
California Immigrant Policy Center
California Labor Federation
California Labor Foundation
California National Organization for Women
California Nurses Association
California Official Court Reporters Association
California Partnership to end Domestic Violence
California Teamsters Public Affairs Council
Canal Alliance
Caring Hands Workers' Association
Causa Justa/Just Cause
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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
Communities Actively Living Independent and Free
Community Resources for Independent Living
Community United Against Violence
Data Center
East Bay Alliance for Sustainable Economy
Echo Park United Methodist Church
Engineers and Scientists of California
Equal Rights Advocates
Filipino Advocates for Justice
Filipino Community Center
Filipino Migrant Center
Golden Gate University - Women's Employment Rights Clinic
Hand in Hand: The Domestic Employers Association
Human Rights Commission
Independent Living Services of Northern California
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
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National Domestic Workers Alliance
National Employment Law Project
National Lawyers Guild Labor and Employment Committee
National Nurses Organizing Committee
National Union of Healthcare Workers
Network in Solidarity with the People of Guatemala
Office and Professional Employees Local 3
Organizacion en California de Lideres Campesinas, Inc.
People Organized to Win Employment Rights
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
San Francisco Labor Council
San Francisco Living Wage Coalition
San Francisco Youth Commission
Senior Action Network
Service Employees International Union
Service Employees International Union - Local United Long
Term Care Workers
Service Employees International Union - United Healthcare
Workers West
Services, Immigrant Rights and 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
Urban Habitat
Utility Workers Union of America, Local 132
Women in Transition Re-entry Project Inc.
Worksafe, Inc.
OPPOSITION : (Verified 8/22/12)
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AARP
Accredited Nursing Care
Agility Health
Amada Home Care
Association of Premier Nanny Agencies
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
Comfort Keepers
Competent Care Home Health Nursing
Craig Cares, Roseville
Crunch Care
Dedicated Domestics, Nannies, Caregivers and Household
Staff
Desert Arc
DialMED Home Care
Disability Rights California
Disability Rights Education and Defense Fund
Elder Care Guides
Help United
Help Unlimited
Help Unlimited HomeCare
Heritage Senior Care Inc.
Hillendale Home Care
Hillside Enterprises
Hired Hands Inc. Homecare
Home and Health Care Management
Home Instead
Home Professionals
Home Sweet Home Care of San Francisco
Homecare California
Homecare Consultants Unlimited, Inc.
Homecare Specialists
Independent Living Resource Center San Francisco
Independent Living Services of Northern California
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In-House Staffing
Innovative Healthcare Consultants, Inc.
Interim HomeStyle Services, Grass Valley
Kaweah Delta Home Care Services
La Jolla Nurses Homecare
Love to Live
LWF Home Care Inc.
Matched CareGivers
Medical Home Care Professionals
National Private Duty Association, Northern California
Chapter
Northern and Southern California Chapters of the National
Private Duty Association
Nursing and Rehab at Home
Option One
Oxford Services
PFC Information Services, Inc.
Pioneer Home Health Care
Rent-a-Parent
Right at Home
Rx Staffing and Home Care, Sacramento
Select Homecare
SENCARE Inc.
Senior Helpers
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
Westside Nannies
ARGUMENTS IN SUPPORT : According to the author's office,
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's office 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
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economy would suffer and many Californians would be forced
to forgo their own jobs to address their household needs.
However, the author's office 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 enjoy.
Proponents argue that current laws and exclusions are
complex, leaving employers and workers without any clear
guidelines. The author's office 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's office 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.
ARGUMENTS IN OPPOSITION : According to opponents,
although the bill has been significantly amended, there are
still portions of this 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 regulates labor and employment issues
that have historically, and properly, been left to the
employer and employee to negotiate.
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Opponents are specifically concerned with the following:
1. Meal and Rest Periods:
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 supersedes 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.
2. 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.
3. Litigation and Right to Sue Working Parents:
Under this bill, these domestic work employers will 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
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individuals who simply cannot afford to satisfy the wage
and hour obligations required.
Additionally, opponents are concerned that this bill
creates a private right of action for violation of this
bill, a protection that no other class of workers - from
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.
4, Paid Vacation:
This bill requires 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 usurps 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.
5. 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.
6. Underground Economy:
Opponents also argue that if the cost of home care is
drastically increased, the price difference between
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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, physically and/or
emotionally.
7. 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 this bill significantly
increases the cost of home care for seniors, people with
disabilities, and other frail Californians, and would
further strengthen an already dangerously large underground
economy. Opponents 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.
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ASSEMBLY FLOOR : 49-28, 6/2/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes,
Furutani, Galgiani, Gatto, Gordon, Hayashi, Roger
Hernández, Hill, Hueso, Huffman, Lara, Bonnie Lowenthal,
Ma, Mendoza, Mitchell, Monning, Pan, Perea, V. Manuel
Pérez, Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Fletcher, Beth Gaines, Garrick, Grove, Hagman, Halderman,
Harkey, Huber, Jeffries, Jones, Knight, Logue, Mansoor,
Miller, Morrell, Nestande, Nielsen, Norby, Olsen, Silva,
Smyth, Valadao, Wagner
NO VOTE RECORDED: Gorell, Hall, Yamada
PQ:k 8/22/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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