Amended in Assembly March 19, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 241

Introduced by Assembly Member Ammiano

February 6, 2013

An act begin delete relating to employment end delete begin insert to amend Sections 3351, 3352, 3551, 3708, and 3715 of, and to add Part 4.5 (commencing with Section 1450) to Division 2 of, the Labor Code, relating to domestic work employees end insert .

LEGISLATIVE COUNSEL’S DIGEST

AB 241, as amended, Ammiano. Domestic begin delete workers: protections. end delete begin insert work employees: labor standards. end insert

begin insert

(1) 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 as specified. Existing law creates the Industrial Welfare Commission and authorizes it to adopt rules, regulations, and orders to ensure that employers comply with those provisions. Existing law makes violations of certain of these provisions a misdemeanor.

end insert begin insert

This bill would specially regulate the wages, hours, and working conditions of domestic work employees, as defined, with specified exceptions. The bill would define domestic work as services related to the care of persons in private households or maintenance of private households or their premises, which would include childcare providers, caregivers of people with disabilities, sick, convalescing, or elderly persons, house cleaners, housekeepers, maids, and other household occupations. The bill would provide an overtime compensation rate for domestic work employees, with specified exceptions. The bill would expressly apply Wage Order No. 15-2001 of the Industrial Welfare Commission, with specified exceptions, to a domestic work employee, except that the new domestic work provisions established by this bill will prevail over provisions that afford less protection. The bill would prescribe standards for determining whether travel time spent by a personal attendant, as defined, accompanying a domestic work employer are to be considered hours worked. The bill would further establish standards for sleeping periods, including accommodations for a domestic work employee who is required to sleep in a private household and would apply provisions regarding meal and rest breaks, as specified, to personal attendants. The bill would require that a domestic worker, after one year of work with the same employer, receive paid days of rest in each calendar year that would be compensated at the employee’s regular rate of pay and calculated pursuant to a specified method related to the number of hours worked in an average week. The bill would require the Division of Labor Standards Enforcement to enforce these provisions. The bill would also provide a domestic work employee a private right of action to enforce these provisions. By expanding the definition of a crime, this bill would impose a state-mandated local program.

end insert begin insert

(2) Existing law requires employers to secure the payment of workers’ compensation for injuries incurred by their employees that arise out of and in the course of employment. The failure to secure workers’ compensation as required by the workers’ compensation law is a misdemeanor. Under existing law, employers of persons who engage in specified types of household domestic service and who work less than a specified number of hours are excluded from that definition of employer and are therefore excluded from the requirement to secure the payment of workers’ compensation, as specified. By expanding the definition of a crime, this bill would impose a state-mandated local program.

end insert begin insert

This bill would remove that exclusion and require all domestic work employers, as defined, to secure the payment of workers’ compensation and would make conforming changes. By expanding the definition of a crime, this bill would impose a state-mandated local program.

end insert begin insert

(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

end insert begin insert

This bill would provide that no reimbursement is required by this act for a specified reason.

end insert begin delete

Existing law generally provides employees with protection regarding wages, hours, and working conditions.

end delete begin delete

This bill would declare the intent of the Legislature to enact legislation to provide labor protection for domestic work employees.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert begin insert

The Legislature finds and declares all of the
following:

end insert begin insert

(a) As recognized by the State of California in Resolution
Chapter 119 of the Statutes of 2010, it is the policy of the state to
encourage and protect the rights of domestic work employees.

end insert begin insert

(b) California’s domestic workers, which includes housekeepers,
nannies, and caregivers for children, persons with disabilities,
and the elderly, work in private households to care for the health,
safety, and well-being of the most important aspects of
Californians’ lives: their families and homes.

end insert begin insert

(c) Domestic workers play a critical role in California’s
economy, working to ensure the health and prosperity of California
families and freeing others to participate in the workforce, which
is increasingly necessary in these difficult economic times. The
labor of domestic workers is central to the ongoing prosperity of
the state but, despite the value of their work, domestic workers
have not received the same protection under state laws as workers
in other industries. Although domestic workers labor to support
families and children of their own, and often are primary income
earners, many earn low wages and live below the poverty line.

end insert begin insert

(d) Because domestic workers care for the most important
elements of their employers’ lives, their families and homes, it is
in the interest of employees, employers, and the people of the State
of California to ensure that the rights of domestic workers are
respected, protected, and enforced.

end insert begin insert

(e) The vast majority of domestic workers are women of color
and immigrants and are particularly vulnerable to unlawful
employment practices. Domestic workers usually work alone,
behind closed doors, and out of the public eye, leaving them
isolated, vulnerable to abuse and exploitation by some employers,
and unable to advocate collectively for better working conditions.
Many domestic workers labor under harsh conditions and work
long hours for low wages without any benefits. For those who are
live-in employees, when terminated, they lose not only their jobs
but their homes. This bill recognizes that many personal attendants
have positive working relationships with their employers. However,
it must also be recognized that there are other situations where
domestic workers are verbally and physically abused or sexually
assaulted, forced to sleep in conditions unfit for human habitation,
and stripped of their privacy and dignity.

end insert begin insert

(f) Many domestic workers are still excluded from the most
basic protections afforded to the rest of the labor force under state
and federal law, including the rights to fair wages, safe and healthy
working conditions, workers’ compensation, and protection from
discriminatory and abusive treatment. The treatment of domestic
workers under federal and state laws has historically reflected
stereotypical assumptions about the nature of domestic work,
specifically that the relationship between employer and “servant”
was “personal,” rather than commercial, in character, that
employment within a household was not “real” productive work,
and that women did not work to support their families.

end insert begin insert

(g) Recognizing that people with disabilities often need personal
attendants in order to be active participants in work, community,
social, and cultural life, this bill creates certain modifications to
the definition of compensable hours worked to accommodate
situations when out-of-town travel with a personal attendant is
necessary. The bill further modifies the existing definition of
compensable hours worked in Wage Order No. 15-2001 of the
Industrial Welfare Commission to allow for an unpaid sleep period
of up to eight hours for personal attendants under specified
circumstances. Personal attendants, who have long been denied
the right to take meal and rest breaks, will be afforded the
protection of Sections 11 and 12 of Minimum Wage Order
No. 15-2001, which includes a provision for on-duty meals when
the nature of the work prevents an employee from being relieved
of all duty.

end insert begin insert

(h) Given the limited legal protections historically provided to
domestic workers, and bearing in mind the unique conditions and
demands of this private, home-based industry, the Legislature, as
an exercise of the police power of the State of California for the
protection of the public welfare, prosperity, health, safety, and
peace of its people, further finds that domestic workers are entitled
to industry-specific protections and labor standards that eliminate
discriminatory provisions in the labor laws and guarantee domestic
workers basic workplace rights to ensure that domestic workers
are treated with equality, respect, and dignity.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Part 4.5 (commencing with Section 1450) is added to
Division 2 of the end insert begin insert Labor Code end insert begin insert , to read: end insert

begin insert

 

PART  begin insert 4.5. end insert   Domestic Work Employees

 

Chapter   begin insert 1. end insert General Provisions and Definitions

 

begin insert 1450. end insert   

This part shall be known and may be cited as the
Domestic Worker Bill of Rights.

begin insert 1451. end insert   

As used in this part, the following definitions apply:

(a) “Domestic work” means services related to the care of
persons in private households or maintenance of private
households or their premises. Domestic work occupations include
childcare providers, caregivers of people with disabilities, sick,
convalescing, or elderly persons, house cleaners, housekeepers,
maids, and other household occupations.

(b) (1) “Domestic work employee” means an individual who
performs domestic work and includes live-in domestic work
employees and personal attendants.

(2) “Domestic work employee” does not include any of the
following:

(A) Any person who performs services through the In-Home
Supportive Services program under Article 7 (commencing with
Section 12300) of Chapter 3 of Part 3 of Division 9 of the Welfare
and Institutions Code.

(B) Any person who is the parent, grandparent, spouse, sibling,
child, or legally adopted child of the domestic work employer.

(C) Any person under 18 years of age who is employed as a
babysitter for a minor child of the domestic work employer in the
employer’s home.

(D) Any person employed as a casual babysitter for a minor
child in the domestic employer’s home. A casual babysitter is a
person whose employment is irregular and intermittent and who
does not work more than six hours per week caring for the same
minor child or children. If a person who performs babysitting
services on an irregular and intermittent basis does a significant
amount of work other than supervising, feeding, and dressing a
child, this exemption shall not apply and the person shall be
considered a domestic work employee. A person who is a casual
babysitter who is over 18 years of age retains the right to payment
of minimum wage for all hours worked, pursuant to Wage Order
No. 15-2001 of the Industrial Welfare Commission.

(E) Any person employed by a licensed health facility, as defined
in Section 1250 of the Health and Safety Code.

(F) Any person who is employed by, or contracts with, an
organization vendored or contracted through a regional center or
the State Department of Developmental Services pursuant to the
Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500) of the Welfare and Institutions
Code) and the California Early Intervention Services Act (Title
14 (commencing with Section 95000) of the Government Code) to
provide services and support for persons with developmental
disabilities, as defined in Section 4512 of the Welfare and
Institutions Code, when funding for those services is provided
through the State Department of Developmental Services.

(G) Any person who provides child care and who, pursuant to
subdivision (d) or (f) of Section 1596.792 of the Health and Safety
Code, is exempt from the licensing requirements of Chapters 3.4
(commencing with Section 1596.70), 3.5 (commencing with Section
1596.90), and 3.6 (commencing with Section 1597.30) of Division
2 of the Health and Safety Code, 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 (Chapter 2
(commencing with Section 8200) of Part 6 of Division 1 of Title 1
of the Education Code) or the California Work Opportunity and
Responsibility to Kids Act (Chapter 2 (commencing with Section
11200) of Part 3 of Division 9 of the Welfare and Institutions
Code).

(c) (1) “Domestic work employer” means a person, including
corporate officers or executives, who directly or indirectly, or
through an agent or any other person, including through the
services of a third-party employer, temporary service, or staffing
agency or similar entity, employs or exercises control over the
wages, hours, or working conditions of a domestic work employee.

(2) “Domestic work employer” does not include any of the
following:

(A) The State of California or an individual who receives
domestic work services through the In-Home Supportive Services
program under Article 7 (commencing with Section 12300) of
Chapter 3 of Part 3 of Division 9 of the Welfare and Institutions
Code or who is eligible for that program based on his or her
income.

(B) An employment agency that complies with Section 1812.5095
of the Civil Code and that operates solely to procure, offer, refer,
provide, or attempt to provide work to domestic workers if the
relationship between the employment agency and the domestic
workers for whom the agency procures, offers, refers, provides,
or attempts to provide domestic work is characterized by all of the
factors listed in subdivision (b) of Section 1812.5095 of the Civil
Code and Section 687.2 of the Unemployment Insurance Code.

(C) A licensed health facility, as defined in Section 1250 of the
Health and Safety Code.

(d) “Emergency” means an unpredictable or unavoidable
occurrence of a serious nature that occurs unexpectedly requiring
immediate action.

(e) “Hours worked” means the time during which a domestic
work employee is subject to the control of a domestic work
employer and includes all time the domestic work employee is
suffered or permitted to work, whether or not required to do so.

(f) “Live-in domestic work employee” means an employee who
resides in the domestic work employer’s household at least five
days per week and for whom the employer makes sleep
accommodations available in compliance with Section 1457.

(g) “Personal attendant” means any person employed by a
private party or employed by any third-party employer recognized
in the health care industry to work in a private household, to
supervise, feed, or dress a person who, by reason of advanced age,
physical disability, or mental deficiency, needs supervision. A
person is a personal attendant only if no significant amount of
work other than the foregoing is required. For purposes of this
subdivision, no significant amount of work means that the work
did not exceed 20 percent of the total weekly hours worked.

begin insert 1452. end insert   

The Division of Labor Standards Enforcement shall
enforce this part.

begin insert 1453. end insert   

(a) Any domestic work employee aggrieved by a
violation of this part may bring an administrative action pursuant
to Section 98 or may bring a civil action in a court of competent
jurisdiction against the domestic work employer violating this
part.

(b) A domestic work employee who brings an action pursuant
to this section and prevails shall be entitled to any legal or
equitable relief permitted by law as may be appropriate to remedy
the violation. A domestic work employee bringing a civil action
pursuant to this section shall also be entitled to an award of
reasonable attorney’s fees and costs, including expert witness fees.

(c) The rights and remedies specified in this part are cumulative
and nonexclusive and are in addition to any other rights or
remedies afforded by contract or under other provisions of law.
If a provision of Wage Order No. 15-2001 of the Industrial Welfare
Commission or any other provision of law affords less protection
to a domestic work employee, this part shall prevail. If a provision
of Wage Order No. 15-2001 of the Industrial Welfare Commission
or any other provision of law affords more protection to a domestic
work employee, the wage order shall prevail.

(d) Notwithstanding any provision of this code or Section 340
of the Code of Civil Procedure, to commence an action for a
violation of this part a domestic work employee shall file an
administrative or civil complaint within three years of the violation.

 

Chapter   begin insert 2. end insert Domestic Work Employee Rights

 

begin insert 1454. end insert   

A domestic work employee shall be compensated
pursuant to Section 510, except as provided in Section 1455 or
1456.

begin insert 1455. end insert   

(a) A domestic work employee who is a live-in employee
or is required to be on duty for 24 consecutive hours or more shall
have a minimum of eight consecutive hours for uninterrupted sleep,
except in an emergency. Any time worked during an emergency
interruption constitutes hours worked.

(b) If a domestic work employee is a live-in employee or is
required to be on duty for 24 consecutive hours or more, the
domestic work employer and the domestic work employee may
agree in writing to exclude from hours worked a bona fide
regularly scheduled sleeping period of not more than eight hours
for uninterrupted sleep from hours worked, provided that the
employee has eight hours free of duty and available for continuous,
uninterrupted sleep and the domestic work employer otherwise
complies with this section and Section 1457. Absent a written
agreement, the eight hours available for sleep shall constitute
hours worked.

begin insert 1456. end insert   

If a domestic work employer who is a person with a
disability needs to be accompanied by a personal attendant when
traveling out of town, all time spent accompanying the employer
in transit, and all time attending to, or carrying out, directives of
the employer constitutes hours worked. Periods during which the
personal attendant is completely relieved of duty, is not required
to be at the same location as the employer, and that are long
enough to enable the attendant to use the time effectively for his
or her own purposes do not constitute hours worked. The employer
and the employee may agree to exclude from hours worked a bona
fide sleeping period of not more than eight hours, provided that
there is a written agreement and the employee has eight hours free
of duty and available for continuous, uninterrupted sleep.

begin insert 1457. end insert   

Any domestic work employee who is required to sleep
in the private household of his or her employer shall be provided
sleeping accommodations that are adequate, decent, and sanitary
according to usual customary standards. These domestic work
employees shall be provided a room separate from any household
resident and shall not be required to share a bed.

begin insert 1458. end insert   

Sections 11 and 12 of Wage Order No. 15-2001 of the
Industrial Welfare Commission shall apply to a personal attendant.

begin insert 1460. end insert   

A domestic work employer shall permit a domestic work
employee who works five hours or more a day to choose the food
he or she eats and to prepare his or her own meals. A domestic
work employer shall permit a domestic work employee to use the
job site’s kitchen facilities and kitchen appliances without charge
or deduction from pay. If a domestic work employee is informed
that a person in the household has bona fide health issues related
to food, including, but not limited to, food allergies, or has
religious or dietary restrictions which make presence of some
foods unacceptable, the employee shall not eat or prepare that
food in the household.

begin insert 1461. end insert   

After one year of work with the same employer, a
domestic worker shall be entitled to paid days of rest in each
calendar year that shall be compensated at the employee’s regular
rate of pay and calculated as follows:

(a) If the employee worked an average of fewer than a total of
20 hours per week for an employer over the last year, the employee
is entitled to one day of paid rest from that employer for the
calendar year, as long as the employee is not employed on a casual
basis. Employment on a casual basis, for purposes of this section,
is work that is intermittent or irregular.

(b) If the employee worked an average of 20 but fewer than 30
hours per week for an employer over the last year, the employee
is entitled to two days of paid rest from that employer for the
calendar year.

(c) If the employee worked an average of 30 or more hours per
week for an employer, the employee is entitled to three days of
paid rest for the calendar year from that employer.

(d) If an employee is terminated or quits without having used
all paid days of rest, the unused paid days of rest shall be paid to
the employee as wages at the final rate of pay. An employee shall
carry over accrued unused paid days of rest from one year to the
next.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 3351 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

3351.  

“Employee” means every person in the service of an
employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written, whether lawfully
or unlawfully employed, and includes:

(a) Aliens and minors.

(b) All elected and appointed paid public officers.

(c) All officers and members of boards of directors of
quasi-public or private corporations while rendering actual service
for the corporations for pay; provided that, where the officers and
directors of the private corporation are the sole shareholders
thereof, the corporation and the officers and directors shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151.

(d)  begin delete Except as provided in subdivision (h) of Section 3352, any end delete
begin insert A end insert 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, begin insert persons of advanced age, or persons with
physical or mental disabilities, end insert or whose duties are personal and
not in the course of the trade, business, profession, or occupation
of the owner or occupant.

(e) All persons incarcerated in a state penal or correctional
institution while engaged in assigned work or employment begin delete as
defined in paragraph (1) of subdivision (a) of Section 10021 of
Title 8 of the California Code of Regulations, end delete or engaged in work
performed under contract.

(f) All working members of a partnership or limited liability
company receiving wages irrespective of profits from the
partnership or limited liability begin delete company; end delete begin insert company, end insert provided that
where the working members of the partnership or limited liability
company are general partners or managers, the partnership or
limited liability company and the partners or managers shall come
under the compensation provisions of this division only by election
as provided in subdivision (a) of Section 4151. If a private
corporation is a general partner or manager, “working members
of a partnership or limited liability company” shall include the
corporation and the officers and directors of the corporation,
provided that the officers and directors are the sole shareholders
of the corporation. If a limited liability company is a partner or
member, “working members of the partnership or limited liability
company” shall include the managers of the limited liability
company.

(g) For the purposes of subdivisions (c) and (f), the persons
holding the power to revoke a trust as to shares of a private
corporation or as to general partnership or limited liability company
interests held in the trust, shall be deemed to be the shareholders
of the private corporation, or the general partners of the partnership,
or the managers of the limited liability company.

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 3352 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

3352.  

“Employee” excludes the following:

(a) Any person defined in subdivision (d) of Section 3351 who
is employed by his or her parent, spouse, or child.

(b) Any person performing services in return for aid or
sustenance only, received from any religious, charitable, or relief
organization.

(c) Any person holding an appointment as deputy clerk or deputy
sheriff appointed for his or her own convenience, and who receives
no compensation from the county or municipal corporation or from
the citizens thereof for his or her services as the deputy. This
exclusion is operative only as to employment by the county or
municipal corporation and does not deprive any person so
deputized from recourse against a private person employing him
or her for injury occurring in the course of and arising out of the
employment.

(d) Any person performing voluntary services at or for a
recreational camp, hut, or lodge operated by a nonprofit
organization, exempt from federal income tax under Section begin delete 101(6) end delete
begin insert 501 end insert of the Internal Revenue Code, of which he or she or a member
of his or her family is a member and who receives no compensation
for those services other than meals, lodging, or transportation.

(e) Any person performing voluntary service as a ski patrolman
who receives no compensation for those services other than meals
or lodging or the use of ski tow or ski lift facilities.

(f) Any person employed by a ski lift operator to work at a snow
ski area who is relieved of and not performing any prescribed
duties, while participating in recreational activities on his or her
own initiative.

(g) Any person, other than a regular employee, participating in
sports or athletics who receives no compensation for the
participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, or other expenses incidental
thereto.

begin delete

(h) Any person defined in subdivision (d) of Section 3351 who
was employed by the employer to be held liable for less than 52
hours during the 90 calendar days immediately preceding the date
of the injury for injuries, as defined in Section 5411, or during the
90 calendar days immediately preceding the date of the last
employment in an occupation exposing the employee to the hazards
of the disease or injury for injuries, as defined in Section 5412, or
who earned less than one hundred dollars ($100) in wages from
the employer during the 90 calendar days immediately preceding
the date of the injury for injuries, as defined in Section 5411, or
during the 90 calendar days immediately preceding the date of the
last employment in an occupation exposing the employee to the
hazards of the disease or injury for injuries, as defined in Section
5412.

(i)

end delete

begin insert (h) end insert  Any person performing voluntary service for a public agency
or a private, nonprofit organization who receives no remuneration
for the services other than meals, transportation, lodging, or
reimbursement for incidental expenses.

begin delete

(j)

end delete

begin insert (i) end insert  Any person, other than a regular employee, performing
officiating services relating to amateur sporting events sponsored
by any public agency or private, nonprofit organization, who
receives no remuneration for these services other than a stipend
for each day of service no greater than the amount established by
the Department of Human Resources as a per diem expense for
employees or officers of the state. The stipend shall be presumed
to cover incidental expenses involved in officiating, including, but
not limited to, meals, transportation, lodging, rule books and
courses, uniforms, and appropriate equipment.

begin delete

(k)

end delete

begin insert (j) end insert  Any student participating as an athlete in amateur sporting
events sponsored by any public agency, public or private nonprofit
college, university or school, who receives no remuneration for
the participation other than the use of athletic equipment, uniforms,
transportation, travel, meals, lodgings, scholarships, grants-in-aid,
or other expenses incidental thereto.

begin delete

(l)

end delete

begin insert (k) end insert  Any law enforcement officer who is regularly employed by
a local or state law enforcement agency in an adjoining state and
who is deputized to work under the supervision of a California
peace officer pursuant to paragraph (4) of subdivision (a) of Section
832.6 of the Penal Code.

begin delete

(m)

end delete

begin insert (l) end insert  Any law enforcement officer who is regularly employed by
the Oregon State Police, the Nevada Department of Motor Vehicles
and Public Safety, or the Arizona Department of Public Safety and
who is acting as a peace officer in this state pursuant to subdivision
(a) of Section 830.32 of the Penal Code.

begin delete

(n)

end delete

begin insert (m) end insert  Any person, other than a regular employee, performing
services as a sports official for an entity sponsoring an
intercollegiate or interscholastic sports event, or any person
performing services as a sports official for a public agency, public
entity, or a private nonprofit organization, which public agency,
public entity, or private nonprofit organization sponsors an amateur
sports event. For purposes of this subdivision, “sports official”
includes an umpire, referee, judge, scorekeeper, timekeeper, or
other person who is a neutral participant in a sports event.

begin delete

(o)

end delete

begin insert (n) end insert  Any person who is an owner-builder, as defined in
subdivision (a) of Section 50692 of the Health and Safety Code,
who is participating in a mutual self-help housing program, as
defined in Section 50087 of the Health and Safety Code, sponsored
by a nonprofit corporation.

begin insert

begin insert SEC. 5. end insert   

end insert

begin insert Section 3551 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

3551.  

(a) Every employer subject to the compensation
provisions of this code, begin delete except employers of employees defined
in subdivision (d) of Section 3351, end delete shall give every new employee,
either at the time the employee is hired or by the end of the first
pay period, written notice of the information contained in Section
3550. The content of the notice required by this section shall be
prescribed by the administrative director after consultation with
the Commission on Health and Safety and Workers’ Compensation.

(b) The notice required by this section shall be easily
understandable and available in both English and Spanish. In
addition to the information contained in Section 3550, the content
of the notice required by this section shall include:

(1) Generally, how to obtain appropriate medical care for a job
injury.

(2) The role and function of the primary treating physician.

(3) A form that the employee may use as an optional method
for notifying the employer of the name of the employee’s “personal
physician,” as defined by Section 4600, or “personal chiropractor,”
as defined by Section 4601.

(c) The content of the notice required by this section shall be
made available to employers and insurers by the administrative
director. Insurers shall provide this notice to each of their
policyholders, with advice concerning the requirements of this
section and the penalties for a failure to provide this notice to all
employees.

begin insert

begin insert SEC. 6. end insert   

end insert

begin insert Section 3708 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

3708.  

In such action it is presumed that the injury to the
employee was a direct result and grew out of the negligence of the
employer, and the burden of proof is upon the employer, to rebut
the presumption of negligence. It is not a defense to the employer
that the employee was guilty of contributory negligence, or
assumed the risk of the hazard complained of, or that the injury
was caused by the negligence of a fellow servant. No contract or
regulation shall restore to the employer any of the foregoing
defenses.

begin delete

This section shall not apply to any employer of an employee, as
defined in subdivision (d) of Section 3351, with respect to such
employee, but shall apply to employers of employees described
in subdivision (b) of Section 3715, with respect to such employees.

end delete

begin insert

begin insert SEC. 7. end insert   

end insert

begin insert Section 3715 of the end insert begin insert Labor Code end insert begin insert is amended to read: end insert

3715.  

(a) Any employee begin delete , except an employee as defined in
subdivision (d) of Section 3351, end delete whose employer has failed to
secure the payment of compensation as required by this division,
or his or her dependents in case death has ensued, may, in addition
to proceeding against his or her employer by civil action in the
courts as provided in Section 3706, file his or her application with
the appeals board for compensation and the appeals board shall
hear and determine the application for compensation in like manner
as in other claims and shall make the award to the claimant as he
or she would be entitled to receive if the employer had secured the
payment of compensation as required, and the employer shall pay
the award in the manner and amount fixed thereby or shall furnish
to the appeals board a bond, in any amount and with any sureties
as the appeals board requires, to pay the employee the award in
the manner and amount fixed thereby.

begin delete

(b) Notwithstanding this section or any other provision of this
chapter except Section 3708, any person described in subdivision
(d) of Section 3351 who is (1) engaged in household domestic
service who is employed by one employer for over 52 hours per
week, (2) engaged as a part-time gardener in connection with a
private dwelling, if the number of hours devoted to the gardening
work for any individual regularly exceeds 44 hours per month, or
(3) engaged in casual employment where the work contemplated
is to be completed in not less than 10 working days, without regard
to the number of persons employed, and where the total labor cost
of the work is not less than one hundred dollars ($100) (which
amount shall not include charges other than for personal services),
shall be entitled, in addition to proceeding against his or her
employer by civil action in the courts as provided in Section 3706,
to file his or her application with the appeals board for
compensation. The appeals board shall hear and determine the
application for compensation in like manner as in other claims,
and shall make the award to the claimant as he or she would be
entitled to receive if the person’s employer had secured the
payment of compensation as required, and the employer shall pay
the award in the manner and amount fixed thereby, or shall furnish
to the appeals board a bond, in any amount and with any sureties
as the appeals board requires, to pay the employee the award in
the manner and amount fixed thereby.

end delete begin delete

It is the intent of the Legislature that the amendments to this
section by Chapter 17 of the Statutes of 1977, make no change in
the law as it applied to those types of employees covered by this
subdivision prior to the effective date of Chapter 1263 of the 1975
Regular Session.

end delete begin delete

(c)

end delete

begin insert (b) end insert   begin insert (1) end insert begin insert   end insert In any claim in which it is alleged that the employer
has failed to secure the payment of compensation, the director,
only for purposes of this section and Section 3720, shall determine,
on the basis of the evidence available to him or her, whether the
employer was prima facie illegally uninsured. A finding that the
employer was prima facie illegally uninsured shall be made when
the director determines that there is sufficient evidence to constitute
a prima facie case that the employer employed an employee on
the date of the alleged injury and had failed to secure the payment
of compensation, and that the employee was injured arising out
of, and occurring in the course of, the employment.

begin delete

Failure

end delete

begin insert (2) end insert begin insert   end insert begin insert Failure end insert of the employer to furnish within 10 days the written
statement in response to a written demand for a written statement
prescribed in Section 3711, addressed to the employer at its address
as shown on the official address record of the appeals board, shall
constitute in itself sufficient evidence for a prima facie case that
the employer failed to secure the payment of compensation.

begin delete

A

end delete

begin insert (3) end insert begin insert   end insert begin insert A end insert written denial by the insurer named in the statement
furnished by the employer as prescribed in Section 3711, that the
employer was so insured as claimed, or the nonexistence of a valid
certificate of consent to self-insure for the time of the claimed
injury, if the statement furnished by the employer claims the
employer was self-insured, shall constitute in itself sufficient
evidence for a prima facie case that the employer had failed to
secure the payment of compensation.

begin delete

The

end delete

begin insert (4) end insert begin insert   end insert begin insert The end insert nonexistence of a record of the employer’s insurance
with the Workers’ Compensation Insurance Rating Bureau shall
constitute in itself sufficient evidence for a prima facie case that
the employer failed to secure the payment of compensation.

begin delete

The

end delete

begin insert (5) end insert begin insert   end insert begin insert The end insert unrebutted written declaration under penalty of perjury
by the injured employee, or applicant other than the employee,
that the employee was employed by the employer at the time of
the injury, and that he or she was injured in the course of his or
her employment, shall constitute, in itself, sufficient evidence for
a prima facie case that the employer employed the employee at
the time of the injury, and that the employee was injured arising
out of, and occurring in the course of, the employment.

begin delete

(d)

end delete

begin insert (c) end insert   begin insert (1) end insert begin insert   end insert When the director determines that an employer was
prima facie illegally uninsured, the director shall mail a written
notice of the determination to the employer at his or her address
as shown on the official address record of the appeals board, and
to any other more recent address the director may possess. The
notice shall advise the employer of its right to appeal the finding,
and that a lien may be placed against the employer’s and any parent
corporation’s property, or the property of substantial shareholders
of a corporate employer as defined by Section 3717.

begin delete

Any

end delete

begin insert (2) end insert begin insert   end insert begin insert Any end insert employer aggrieved by a finding of the director that it
was prima facie illegally uninsured may appeal the finding by
filing a petition before the appeals board. The petition shall be
filed within 20 days after the finding is issued. The appeals board
shall hold a hearing on the petition within 20 days after the petition
is filed with the appeals board. The appeals board shall have
exclusive jurisdiction to determine appeals of the findings by the
director, and no court of this state has jurisdiction to review, annul,
or suspend the findings or the liens created thereunder, except as
provided by Article 2 (commencing with Section 5950) of Chapter
7 of Part 4 of Division 4.

begin delete

(e)

end delete

begin insert (d) end insert   begin insert (1) end insert begin insert   end insert Any claim brought against an employer under this
section may be resolved by the director by compromise and release
or stipulated findings and award as long as the appeals board has
acquired jurisdiction over the employer and the employer has been
given notice and an opportunity to object.

begin delete

Notice

end delete

begin insert (2) end insert begin insert   end insert begin insert Notice end insert may be given by service on the employer of an
appeals board notice of intention to approve the compromise and
release or stipulated findings and award. The employer shall have
20 days after service of the notice of intention to file an objection
with the appeals board and show good cause therefor.

begin delete

If

end delete

begin insert (3) end insert begin insert   end insert begin insert If end insert the employer objects, the appeals board shall determine
if there is good cause for the objection.

begin delete

If

end delete

begin insert (4) end insert begin insert   end insert begin insert If end insert appeals board finds good cause for the objection, the
director may proceed with the compromise and release or stipulated
findings and award if doing so best serves the interest of the
Uninsured Employers Fund, but shall have no cause of action
against the employer under Section 3717 unless the appeals board
case is tried to its conclusion and the employer is found liable.

begin delete

If

end delete

begin insert (5) end insert begin insert   end insert begin insert If end insert appeals board does not find good cause for the objection,
and the compromise and release or stipulated findings and award
is approved, the Uninsured Employers Fund shall have a cause of
action against the employer pursuant to Section 3717.

begin delete

(f)

end delete

begin insert (e) end insert  The director may adopt regulations to implement and
interpret the procedures provided for in this section.

begin insert

begin insert SEC. 8. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

end insert

begin delete

SECTION 1.  

It is the intent of the Legislature to enact legislation
to provide labor protection for domestic work employees.

end delete