BILL ANALYSIS Ó
Senate Committee on Labor and Industrial Relations
William W. Monning, Chair
Date of Hearing: June 26, 2013 2013-2014 Regular
Session
Consultant: Alma Perez Fiscal:Yes
Urgency: No
Bill No: AB 241
Author: Ammiano
As Introduced/Amended: May 24, 2013
SUBJECT
Domestic work employees: labor standards
KEY ISSUE
Should the Legislature extend existing employment rights and
protections to domestic work employees, such 8 hours of
uninterrupted sleep, overtime compensation and duty-free meal
and rest periods?
ANALYSIS
Under existing law , it is the duty of the Industrial Welfare
Commission (IWC), within the Department of Industrial Relations
(DIR), 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 overtime compensation (Labor Code §510):
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;
§ 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 (Labor Code §512):
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
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, 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 Industrial Welfare Commission Wage Orders , allow for
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"on-duty" meal periods where the employee is not relieved of
work responsibilities, but is allowed to eat while they work.
An on-duty meal period is permitted only when the nature of the
work prevents an employee from being completely relieved of
work. 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 Worker Bill of Rights" to
provide protections and 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 the disabled, 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 as a casual
babysitter of a minor working not more than six
hours per week;
§ A person employed by a licensed health
facility;
§ A person employed by an organization
vendored or contracted through a regional center
or the State Department of Development Services,
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as specified, to provide services and support for
persons with development disabilities; and
§ A person who provides child care, as
specified, if the parent or guardian of the child
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. "Live-in domestic work employee" means an employee
who resides in the employer's household at least five
days per week and has sleep accommodations.
b. "Personal attendant" means a person employed by a
private or third-party to supervise, feed, or dress a
person who, by reason of advanced age, physical
disability, or mental deficiency, needs supervision.
However, status as a personal attendant applies only if
this work does not exceed 20% of the total weekly hours
worked.
c. "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,
and excludes the following:
§ The State of California or an
individual receiving domestic work services
through the IHSS program or who is eligible for
that program based on his or her income.
§ An employment agency that operates
solely to procure, offer, refer, provide, or
attempt to provide work to domestic workers, as
specified.
§ A licensed health facility.
1) Establish specific employment rights for domestic work
employees that includes:
a. A right to overtime compensation as provided
under existing law;
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b. Rights to existing meal and rest period
requirements for personal attendants;
c. 8 hours of uninterrupted sleep for a domestic
work employee who is a live-in or is required to be on
duty for 24 consecutive hours or more, except in an
emergency any time worked constitutes hours worked.
d. Specifying that for a personal attendant
accompanying a person with a disability when traveling
out of town, time spent with the person in transit and
attending to or carrying out the directives of the
person constitutes hours worked, as specified.
e. A domestic work employee required to sleep in
the private household of his/her employer must be
provided with a separate room that is a decent and
sanitary sleeping accommodation, and shall not be
required to share a bed.
f. Permitting a domestic work employee who works
five or more hours a day to choose the food he/she
eats and to prepare his/her own at the job site's
kitchen. Except for households with religious, dietary
or health related restrictions.
2) Provide that these provisions shall be enforced by the
Division of Labor Standards Enforcement (DLSE).
3) Provide for administrative or civil enforcement of these
provisions, as specified, including remedies and attorney's
fees and costs to prevailing domestic work employees.
4) Make several legislative findings and declarations
regarding domestic workers.
COMMENTS
1. Background on Domestic Workers:
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"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. One useful analysis
includes the following overview of the treatment of domestic
workers under California law:
"In California, 'all persons employed in household
occupations, whether paid on a time, piece rate,
commission, or other basis' are entitled to be paid the
state minimum wage. Live-in domestic workers cannot be
charged for food or housing without a voluntary, written
agreement. Like its federal counterpart, California wage
and hour laws exclude personal attendants. However,
personal attendants, whether live-in or not, are entitled
to the California minimum wage if they spend more than
twenty percent of their time doing other housework.
Non-live-in domestic workers are entitled to overtime pay
under California law under the same conditions as under
federal law; however, in California such workers are also
entitled to rest periods. Ten minute rest periods and a
thirty minute meal period are considered on-duty and
counted as time worked, unless the employee is relieved of
all duty during the meal period.
Live-in domestic workers are entitled to overtime only if
they work more than nine hours in a workday or if they work
on the sixth or seventh workday. These workers must be
given at least 12 consecutive off-duty hours on any
workday. Work during off duty time is compensable as
overtime. Personal attendants are not entitled to meal
breaks or rest breaks.
All domestic workers in California are entitled to be free
from sexual harassment. California employment and labor law
provides most domestic workers with minimum wages and
maximum hours, workers' compensation for injuries on the
job, and protection from sexual harassment. However,
domestic workers in California are left without many of the
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basic legal protections afforded to other workers in this
state."
("Left Out: Assessing the Rights of Migrant Domestic
Workers in the U.S., Seeking Alternatives," Human Rights
Center, UC Berkeley, Boalt Hall School of Law, November
2003)
2. Need for this bill?
Though rights and protections are relatively broad in
California, 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, meal and rest period rights and safe and
healthy working conditions. Domestic workers may suffer
discrimination, since California's Fair Employment and Housing
Act only prohibits employers with five or more employees from
discrimination on the basis of race, sex, religion, national
origin, pregnancy, age, disability, marital status, sexual
orientation, gender identity, or on the basis of an English
only policy. California occupational safety and health law
excludes 'household domestic service.'
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. The author cites a
2013 report by the National Domestic Workers Alliance, Home
Truths: Domestic Workers in California, which surveyed 631
domestic workers in four metropolitan areas in the state, Los
Angeles, San Diego, San Francisco and San Jose. The report
found that 25% of domestic workers are paid below CA's minimum
wage; less than 1% receives retirement or pension benefits;
only 6% work for employers who pay into Social Security; just
1% work for employers who pay into workers' compensation; and
only 2% receive employer-provided health insurance coverage.
According to proponents, this bill is needed to set
industry-wide standards that will protect domestic workers,
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create greater stability in the industry and improve the
quality of care for Californians. This bill would enact the
Domestic Worker Bill of Rights to regulate the wages, hours,
and working conditions of domestic work employees, as defined.
3. "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
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
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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 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.
4. 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 provided
by trained personnel, such as a registered nurse or a
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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.
On December 27, 2011, the federal government (through the U.S.
Department of Labor) proposed key changes to the regulations
governing "companions." Among other things, the proposed
changes would provide that: (1) third party employers of
domestic workers who care for elderly and those with
disabilities in a private household would now be covered by
federal weekly overtime requirements; and (2) the definition
of companionship services would be significantly narrowed such
that far fewer caregivers for the elderly and people with
disabilities would qualify as companions exempt from minimum
wage and overtime. Live-in caregivers hired directly by the
household would continue to be exempt from overtime as live-in
employees, but would be entitled to minimum wage if they fall
outside the narrowed companion exemption.
On February 24, 2012, the Department published a notice to
extend the comment period to March 12, 2012, because of
requests received to extend the period for filing public
comments and the Department's desire to obtain as much
information about its proposals as possible. These proposed
regulation changes are still pending.
5. 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 [A. 1470B (Wright)/S.2311-E (Savino)] was signed by
Governor Paterson on August 31, 2010 and went into effect on
November 29, 2010. Among other things, the New York statute:
Establishes an eight hour workday and overtime after
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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.
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. 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 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
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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 :
Opponents, including the California Association for Health
Services at Home and numerous individual home care companies
and individuals, argue that this bill would significantly
impact their ability to provide affordable care to elderly
clients or clients with disabilities and would make it very
difficult to provide care to those needing around the clock
assistance. They argue that seniors and other frail
Californians depend on private home care services to stay
healthy and in their homes and to avoid institutionalization.
Opponents contend that the homecare industry simply cannot
absorb the additional increased labor costs resulting from
this bill and would make live-in care completely unaffordable.
Opponents contend that live-in rates would more than double -
a cost that clients clearly will not pay when they can receive
the same services from the "underground economy" and pay cash
for a fraction of the cost.
The CA Chamber of Commerce states that the wage and hour
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burden this bill creates on individual homeowners as well as
third-party employers is significant, and unprecedented.
Failure to comply with any of the requirements in the bill
would subject the homeowner or third-party employer to costly
statutory penalties and litigation, including an employee's
right to attorneys' fees. They argue that, as demonstrated by
the overwhelming number of employment lawsuits filed on a
daily basis, sophisticated businesses, with professional human
resources staff and employment attorneys, struggle with the
proper implementation of the onerous California-only wage and
hour requirements. This bill, they believe, would expand this
burden onto individual homeowners, who are simply seeking to
hire assistance in the care for their children or elderly
loved ones.
According to the Chamber, the detrimental impact of this
potential liability will create one of two problems: (1)
discourage any homeowner from retaining the services of
'domestic work employees,' thereby increasing the unemployment
rate in California; or (2) force such homeowners and
third-party employers to enter into the underground economy,
as compliance with these requirements would simply be too
costly. Either scenario, they argue, will only serve to
further harm California's economy, and create additional
financial problems than those already plaguing the state.
Finally, opponents note that Governor Brown vetoed similar
legislation last year over the "economic and human impact on
the disabled or elderly persons and their families." [See
veto message of AB 889 below.]
8. Prior Legislation :
AB 889 (Ammiano) of 2011: Vetoed by the Governor
AB 889, as originally introduced, was almost identical to this
bill. However, AB 889 was subsequently amended to require the
Department of Industrial Relations to adopt regulations
governing specified working conditions of domestic work
employees. AB 889 was vetoed by Governor Brown, who stated
the following in his veto message:
"Domestic workers work in the homes of ill, elderly or
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disabled people. They often share duties and
responsibilities with the family and friends of the
patient-employer. Those employed in this noble endeavor,
like anyone who works for a living, deserve fair pay and
safe working conditions. Seeking to improve the
circumstances of these workers however, raises a number of
unanswered questions.
What will be the economic and human impact on the disabled
or elderly person and their family of requiring overtime,
rest and meal periods for attendants who provide 24 hour
care? What would be the additional costs and what is the
financial capacity of those taking care of loved ones in
the last years of life? Will it increase costs to the point
of forcing people out of their homes and into licensed
institutions?
Will there be fewer jobs for domestic workers? Will the
available jobs be for fewer hours? Will they be less
flexible?
What will be the impact of the looming federal policies in
this area? How would the state actually enforce the new
work rules in the privacy of people's homes?
The bill calls for these questions to be studied by the
state Department of Industrial Relations and for the
department to simultaneously issue new regulations to
provide overtime, meal, rest break and sleep periods for
domestic workers. In the face of consequences both unknown
and unintended, I find it more prudent to do the studies
before considering an untested legal regime for those that
work in our homes.
Finally, a drafting error leaves most In Home Supportive
Service (IHSS) workers subject to this measure - -
resulting in costs to the state of over $200 million per
year. This could require cuts in wages, reduced hours of
care and other reductions to those served by IHSS workers."
HR 11 (Ammiano and V.M. Perez) of 2011: Adopted
This resolution recognizes March 30th as International
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Domestic Workers' Day.
ACR 163 (V.M. Perez) of 2010: Res. Chapter 119. Statutes of
2010
This resolution encourages greater protections in federal and
state law for domestic workers.
AB 2536 (Montanez) of 2006: Vetoed by the Governor
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.
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
California Domestic Workers Coalition (Sponsor)
American Civil Liberties Union of California
Anakbayan Silicon Valley
Asian Americans for Civil Rights and Equality
Asian Pacific American Labor Alliance
Asian Pacific American Legal Center of Southern CA
Asian Pacific Environmental Network
Babae San Francisco
California Communities United Institute
California Immigrant Policy Center
California Nurses Association
California Women's Agenda
Center for Transformative Change
Central Coast Alliance United for a Sustainable Economy
Centro Laboral de Graton
Chinese Progressive Association
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Coleman Advocates for Children and Youth
Community United Against Violence
Dignidad Rebelde
Dolores Street Community Services
East Bay Alliance for a Sustainable Economy
East Bay Interfaith Committee for Worker Justice
End DV Counseling and Consulting
Filipino Advocates for Justice
Filipino Migrant Center
Forward Together
GABRIELA USA
Gray Panthers of San Francisco
Interfaith Coalition for Immigrant Rights
Interfaith Council on Economics and Justice
Labor Project for Working Families
Latino Union of Chicago
Long Beach Immigrant Rights Coalition
Mujeres Unidas y Activas
National Alliance for Filipino Concerns
National Domestic Workers Alliance
Oakland Rising
Out4Immigration
People Organized to Win Employment Rights
Pilipino Workers Center of Southern California
Racial Justice Allies of Sonoma County
SEIU-United Healthcare Workers West
Service, Immigrant Rights & Education Network
Sisters of GABRIELA, Awaken!
Temple Hashem
Training Occupational Development Educating Communities
Transnational Institute for Grassroots Research and Action
Union Salvadorena de Estudiantes Universitarios
United Educators of San Francisco
Young Workers United
OPPOSITION
24hr Home Care
Addus HealthCare
Alta Home Care
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At Home Nursing Care
California Association for Health Services at Home
California Chamber of Commerce
Care Plus Home Care
Caring Solutions
ComForcare Senior Services
Comfort Keepers of Encino
Comfort Keepers of Lomita
Comfort Keepers of Orange
Comfort Keepers of San Diego
Craig Cares
DialMED Home Care
Elder Care Guides
Hired Hands Inc.
Home Care Association of America-Northern California Chapter
Homecare California, Inc.
Home Instead Senior Care - Monrovia
Home Instead Senior Care - Placentia
Home Instead - Santa Barbara
Independent Nurse Consulting
LivHOME Inc.
Matched Care Givers Continuous Care
Maxim Companion Services
Medical Care Professionals
Orange Chamber of Commerce
Provident Care
Res Care HomeCare
Right at Home of Elk Grove
Right at Home of Rancho Mirage
Right at Home of San Diego
Right at Home of Sonoma County
Right at Home of Ventura County
Senior Helpers-Caring In Home Companions
The Arc of California
United Cerebral Palsy California Collaboration
Visiting Angels Living Assistance Services - San Ramon
Visiting Angels Northeast Los Angeles and the West San Fernando
Valley
Visiting Angels Senior Homecare - Glendale
Young at Heart Family Services
54-individuals
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