BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 241|
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THIRD READING
Bill No: AB 241
Author: Ammiano (D), et al.
Amended: 9/3/13 in Senate
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMMITTEE : 3-1, 6/26/13
AYES: Monning, Leno, Yee
NOES: Wyland
NO VOTE RECORDED: Padilla
SENATE APPROPRIATIONS COMMITTEE : 5-2, 8/30/13
AYES: De León, Hill, Lara, Padilla, Steinberg
NOES: Walters, Gaines
ASSEMBLY FLOOR : 45-25, 5/29/13 - See last page for vote
SUBJECT : Domestic work employees: labor standards
SOURCE : California Domestic Workers Coalition
DIGEST : This bill enacts the Domestic Worker Bill of Rights
to provide protections and regulate the wages, hours, and
working conditions of domestic work employees, as defined.
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.
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Under existing law, the Division of Labor Standards Enforcement
(DLSE) 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 IWC
orders.
Existing law, for overtime compensation:
1. 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:
A. 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;
B. 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;
C. 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:
1. Requires, with certain exemptions, that all employees receive
a meal break of 30 minutes before the start of the fifth 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.
2. 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.
3. Requires that employers provide non-exempt employees with
rest breaks of 10 minutes for every four hours worked.
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4. 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.
Existing IWC Wage Orders, allow for "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 enacts 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:
1. Provides 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 this bill):
In-Home Supportive Services (IHSS) program
employees;
Specified family members;
A babysitter under 18 years of age;
A person employed as a casual babysitter of a
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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 Department
of Development Services, 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 CalWORKs Act.
C. "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.
D. "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.
E. "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/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.
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2. Establishes specific employment rights for domestic work
employees that includes:
A. A right to overtime compensation as provided under
existing law;
B. Rights to existing meal and rest period requirements
for personal attendants;
C. A domestic work employee who is a personal attendant
shall be compensated as follows:
(1) More than nine hours in a day shall be
compensated at 1.5 times the employee's regular rate of
pay.
(2) More than 16 hours in a day shall be compensated
at two times the employee's regular rate of pay.
D. Eight 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.
E. 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.
F. 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.
G. 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.
3. Provides that these provisions shall be enforced by the DLSE.
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4. Provides for administrative or civil enforcement of these
provisions, as specified, including remedies and attorney's
fees and costs to prevailing domestic work employees.
5. Makes several legislative findings and declarations regarding
domestic workers.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
DIR would incur ongoing staffing costs of $285,000 (special
funds) to review, investigate and resolve claims.
DIR would incur one-time costs of $50,000 (special funds) to
design, prepare and post education materials.
DIR would have one-time costs of approximately $50,000
(special funds) to update, print, mail, and process a new
wage order detailing the requirements of this bill.
SUPPORT : (Verified 9/3/13)
California Domestic Workers Coalition (source)
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
Coleman Advocates for Children and Youth
Community United Against Violence
Dignidad Rebelde
Dolores Street Community Services
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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 : (Verified 9/3/13)
24hr Home Care
Addus HealthCare
Alta Home Care
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
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Comfort Keepers of Lomita
Comfort Keepers of Orange
Comfort Keepers of San Diego
Craig Cares
DialMED Home Care
Disability Rights California
Elder Care Guides
Hired Hands Inc.
Home Care Association of America-Northern California Chapter
Home Instead - Santa Barbara
Home Instead Senior Care - Monrovia
Home Instead Senior Care - Placentia
Homecare California, Inc.
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
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. 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 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
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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 existing 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 : Opponents, including the California
Association for Health Services at Home and numerous individual
home care companies and individuals, argue that this bill
significantly impacts their ability to provide affordable care
to elderly clients or clients with disabilities and makes 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 will 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
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same services from the "underground economy" and pay cash for a
fraction of the cost.
The California Chamber of Commerce (CalChamber) states that the
wage and hour 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 will 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, expands 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 CalChamber, 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."
ASSEMBLY FLOOR : 45-25, 5/29/13
AYES: Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra,
Bonilla, Bonta, Bradford, Brown, Ian Calderon, Campos, Chau,
Chesbro, Dickinson, Eggman, Fong, Frazier, Garcia, Gatto,
Gomez, Gonzalez, Gordon, Hall, Roger Hernández, Jones-Sawyer,
Lowenthal, Medina, Mitchell, Mullin, Nazarian, Pan, V. Manuel
Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,
Ting, Weber, Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Allen, Bigelow, Chávez, Conway, Cooley, Dahle,
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Donnelly, Beth Gaines, Gorell, Grove, Hagman, Harkey, Jones,
Logue, Maienschein, Mansoor, Melendez, Morrell, Nestande,
Olsen, Patterson, Wagner, Waldron, Wilk
NO VOTE RECORDED: Buchanan, Daly, Fox, Gray, Holden, Levine,
Linder, Muratsuchi, Perea, Vacancy
PQ:k 9/3/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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