BILL ANALYSIS                                                                                                                                                                                                    Ó





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               SB 1015      Hearing Date:    April 6,  
          2016
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          |Author:    |Leyva                                                |
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          |Version:   |February 11, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Alma Perez-Schwab                                    |
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                 Subject:  Domestic work employees:  labor standards


          KEY ISSUES
          
          Should the Legislature repeal the sunset date of January 1, 2017  
          on the Domestic Worker Bill of Rights, including overtime  
          compensation requirements for domestic workers, thereby making  
          these requirements permanent?  

          Should domestic workers receive overtime compensation after 9  
          hours of work in one day/ 45 hours in one week when a majority  
          of employees are entitled to overtime after 8 hours a day and 40  
          a week? 


          ANALYSIS
          
           Existing law:

              1.   With some exceptions, including specified domestic  
               worker employees, requires employers to pay overtime  
               compensation as follows:
           
                   a.        Work in excess of 8 hours in one workday or 40  
                    hours in any one workweek, and the first 8 hours  








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                    worked on the 7th day of work in any one workweek  
                    shall be compensated at the rate of no less than 1   
                    times the regular rate of pay;  

                   b.        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;  
           
                  c.        Work in excess of 8 hours on any 7th day of a  
                    workweek shall be compensated at the rate of no less  
                    than twice the regular rate of pay.  

             2.   Under the Domestic Worker Bill of Rights, and until a  
               sunset date of January 1, 2017  , a domestic work employee  
               who is employed as a  personal attendant is entitled to  
               overtime compensation, as follows:

                  a.        Work in excess of 9 hours in any workday or  
                    more than 45 hours in any workweek shall be  
                    compensated at the rate of 1  times the regular rate  
                    of pay.

             3.   Defines "domestic work employee" as an individual  
               performing domestic work and includes live-in employees and  
               personal attendants except, among others, the following:

                  a.        A person performing services through the  
                    In-Home Supportive Services program; 
                  b.        Specified family members and casual  
                    babysitters;
                  c.        A person providing support services to the  
                    developmentally disabled employed by a regional center  
                    or the State Department of Developmental Services; 
                  d.        A person providing child care for someone  
                    receiving services pursuant to programs authorized  
                    under the Child Care and Development Services Act or  
                    the CA Work Opportunity and Responsibility to Kids  
                    Act. 

             4.   Defines "personal attendant" as a person employed by a  
               private householder or by any third-party employer, to  
               supervise, feed, or dress a child, or a person who by  
               reason of advanced age, physical disability, or mental  
               deficiency needs supervision. 








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             5.   Requires the Governor to convene a committee composed of  
               personal attendants, employers of personal attendants or  
               their representatives to study and report to the Governor  
               on the effects of the domestic worker overtime  
               requirements. 
           
           
          This Bill  would delete the January 1, 2017 repeal date on the  
          provisions under the Domestic Worker Bill of Rights, thereby  
          making the overtime compensation for domestic workers  
          requirement permanent. 


          COMMENTS
          

          1.  Background on Domestic Workers:

            In 1938, the U.S. Congress enacted the Fair Labor Standards  
            Act introducing the forty-hour work week and establishing  
            minimum wage and overtime protections for workers, with some  
            exceptions including domestic workers and farmworkers. In  
            1974, Congress extended FLSA coverage to workers who perform  
            domestic service. "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.   
            Until very recently, domestic workers in California were  
            excluded from the employer requirement of overtime for hours  
            worked beyond the state minimum of 8 hours a day or 40 hours a  
            week.  

            In 2012, through AB 889(Ammiano), a grassroots effort began to  
            extend some of the most fundamental labor protections to  
            domestic workers.  The measure directed the Department of  
            Industrial Relations to adopt regulations governing the  
            working conditions of domestic work employees. Among other  
            things, the bill required the regulations to include  
            provisions for overtime compensation, meal and rest periods  
            and uninterrupted sleep periods and compensation for  
            interruptions. AB 889 was vetoed by Governor Brown who stated  
            the following:

               "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." 

            In 2013, AB 241(Ammiano) was introduced to again attempt to  
            extend these labor protections to domestic workers. The  
            measure, which passed and was signed by Governor Brown,  
            enacted the Domestic Worker Bill of Rights which extends  
            overtime compensation rights to domestic workers who are  
            personal attendants after 9 hours of work in one day and 45  
            hours a week.  The measure also required the Governor to  
            convene a committee composed of personal attendants, employers  
            and their representatives to study and report on the effects  
            of the domestic worker overtime requirements.  The provisions  
            of AB 241 are set to sunset on January 1, 2017. 








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          2.  Recent Changes at the Federal Level:

             California's overtime compensation requirement for domestic  
            workers applies to individuals who are "personal attendants"  
            defined as a person employed by a private householder or by  
            any third-party employer [either living in the household or  
            out], to supervise, feed, or dress a child, or a person who by  
            reason of advanced age, physical disability, or mental  
            deficiency needs supervision.  The personal attendant status  
            applies if not more than 20 percent of the total weekly hours  
            worked is spent on non-caregiving duties, such as general  
            housekeeping. 

            At the federal level, the Fair Labor Standards Act exempts  
            certain domestic service workers from the minimum wage and  
            overtime provisions. Casual babysitters and domestic service  
            workers employed to provide "companionship services" for an  
            elderly person or a person with an illness, injury, or  
            disability are not required to be paid the minimum wage or  
            overtime pay if they meet certain regulatory requirements.  
            Effective January 1, 2015, the U.S. Department of Labor  
            amended its regulations to revise the definition of  
            "companionship services" to clarify and narrow the duties that  
            fall within the term and prohibit third party employers, such  
            as home care agencies, from claiming the companionship or  
            live-in exemptions. The major effect of this Final Rule is  
            that more domestic service workers will be protected by the  
            FLSA's minimum wage and overtime provisions.

            The FLSA requires employers to compensate employees at  
            one-and-one-half times the regular rate of pay for all hours  
            worked over 40. Unlike California law requiring overtime  
            compensation after 9 hours a day and 45 a week, the FLSA does  
            not contain a daily overtime requirement.  

          3.  Need for this bill and Staff Comment: 
            
            The Domestic Worker Bill of Rights provisions extending the  
            payment of overtime compensation to domestic workers after 9  
            hours of work in one day and 45 hours a week is set to sunset  
            on January 1, 2017. A bill is necessary to either extend the  
            sunset date or repeal it, making the provisions permanent in  
            law. This bill would repeal the January 1, 2017 sunset date on  
            these provisions.  The author and proponents believe that the  
            law has been successful and making the provisions permanent  







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            will improve the domestic workers' ability to advocate for  
            dignified standards in their jobs. 

            A key component of AB 241(Ammiano) was a requirement that the  
            Governor convene a committee composed of personal attendants,  
            their employers and/or their representatives to study and  
            report to the Governor on the effects of the domestic worker  
            overtime requirements; however, the bill was not specific on a  
            due by date for such reporting. The Department of Industrial  
            Relations has been conducting surveys to study the impacts on  
            both the domestic workers and their employers. At this point,  
            there is no set date for the release of these findings.  

            The sponsors of this measure have conducted internal reviews  
            and report the following:
                       More clarity on required compensation for live-in  
                  workers who worked 24/7; 
                       A move away from shifts longer than 12 hours by  
                  instead hiring multiple workers;
                       More education for both employers and workers  
                  needs to be prioritized;
                       Some employers are delaying compliance in hopes of  
                  waiting out the sunset date;

            Reviewing the findings of the DIR committee would be helpful  
            in determining whether a full repeal is adequate at this time.  
            In addition, the author may wish to consider addressing the  
            differences between federal and state law with regards to the  
            overtime hours applicable for domestic workers (40 at the  
            federal level, 45 at the state level) and any differences in  
            workers covered for consistency. 

          4.  Proponent Arguments  :
            
            According to proponents, in California there are 300,000  
            domestic workers who serve as housekeepers, nannies, and  
            caregivers in private homes. Domestic workers are primarily  
            immigrant women who work in private households enabling others  
            to participate in the workforce. However, despite the  
            importance of their work, domestic workers have historically  
            received wages well below the poverty line and were excluded  
            from some of the most fundamental labor protections other  
            California workers enjoy.

            According to proponents of this measure, since the passage of  







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            the Domestic Worker Bill of Rights, domestic workers have  
            reported growth in their confidence, with their work affirmed  
            as legitimate work, and an improved ability to advocate for  
            dignified working conditions.  They argue that by making the  
            law permanent, the legislature will dignify this profession  
            and ensure fair and just standards for workers that will  
            result in better care for both the workers and the people they  
            attend to.  

          5.  Opponent Arguments  :

            Opponents of the measure argue that eliminating the sunset  
            date on the overtime provisions are premature as the impact  
            study that was mandated by AB 241 has not been released and  
            the work continues to collect and analyze all the data.  
            According to the California Association for Health Services at  
            Home (CAHSAH), the Department of Industrial Relations notified  
            them that they will be conducting a final home care providers  
            study beginning in April. CAHSAH argues that the full results  
            of the impact study need to be understood before making any  
            permanent changes. They argue that this is especially  
            important for seniors who struggle to pay for home care,  
            particularly if they require 24-hour live-in assistance.  

            According to CAHSAH, they have heard from home care  
            providers, their caregivers, clients and family members about  
            the serious negative consequences that have resulted from AB  
            241, including the following: 

                     Families are faced with difficult decisions about  
                 how to afford care and keep the continuity of care  
                 consistent. 
                     Many seniors with dementia are experiencing the  
                 confusion of having multiple caregivers in their home. 
                     Caregivers have lost schedule flexibility.
                     Caregivers who were accustomed to living in the  
                 client's homes lost their ability to live rent-free and  
                 have had their income significantly reduced.
                     Home care providers are having difficulty finding  
                 enough caregivers.
                     Many seniors and frail individuals are being forced  
                 out of their homes into residential care facilities.
                     Many agencies have cut back on the overtime by  
                 giving personal attendants 8-hour shifts instead of  
                 12-hour shifts. 







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          6.  Prior and Related Legislation  :

            SB 1344(Stone, 2016) proposes to add a sleep time exemption  
            from hours worked for purposes of overtime compensation for  
            live-in employees or 24-hour shift workers. SB 1344 is  
            currently pending a hearing before this Committee. 

            AB 241(Ammiano, 2013) enacted the Domestic Worker Bill of  
            Rights granting overtime compensation, until January 1, 2017,  
            to specified domestic workers after 9 hours in one day and 45  
            hours a week. AB 241 by signed by Governor Brown. 

            AB 889(Ammiano, 2012) would have required the adoption of  
            regulations governing specified working conditions of domestic  
            workers. AB 889 was vetoed by Governor Brown.
          SUPPORT
          
          California Domestic Workers Coalition (Sponsor)
          Ability NOWBay Area
          American Civil Liberties Union of California 
          American Federation of Teachers, Local 2121
          American Friends Service Committee's US/Mexico Border Program
          Anakbayan East Bay
          Asian Americans Advancing Justice-California
          Asian Health Services
          Asian Immigrant Women Advocates
          Asian Pacific American Labor Alliance
          Asian Pacific Islander Legal Outreach
          Association of Filipino Workers
          Bend the Arc
          Binational Center for the Development of Oaxacan Indigenous  
          Communities
          California Alliance for Retired Americans
          California Commission on Asian Pacific Islander American Affairs
          California Employment Lawyers Association
          California Faculty Association, San Francisco State Chapter 
          California Immigrant Policy Center
          California Immigrant Youth Justice Alliance
          California In-Home Supportive Services Consumer Alliance
          California Latinas for Reproductive Justice
          California Nurses Association
          California Partnership
          California Rural Legal Assistance Foundation 
          Central American Resource Center/Centro de Recursos  







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          Centroamericanos
          Central Coast Alliance United for a Sustainable Economy
          Centro Cultural de Mexico
          Centro Legal de la Raza
          Centro Laboral de Graton
          Chinese for Affirmative Action
          Coalition for Humane Immigrant Rights of Los Angeles
          Community Coalition 
          Community Health for Asian Americans
          Community Housing Partnerships
          Council on American-Islamic Relations California
          Day Labor Center Hayward, Oakland, Tri-City, Tri-Valley
          Day Worker Center in Santa Cruz County
          Day Worker Center of Mountain View
          Dolores Street Community Services
          East Bay Alliance for a Sustainable Economy
          East Bay Organizing Committee
          El/La Para TransLatinas
          Episcopal Church of St. John the Evangelist
          Equal Rights Advocates
          Filipino Advocates for Justice
          Filipino Community Center
          Filipino Migrant Center
          Forward Together
          Friends Committee on Legislation of California
          GABRIELA San Francisco
          Gray Panthers of San Francisco
          Hand in Hand: The Domestic Employers Network
          Immigrant Youth Coalition
          Institute of Popular Education of Southern California
          Interfaith Movement for Human Integrity
          International Longshore & Warehouse Union Local 6
          Jobs with Justice San Francisco
          KmB, Pro-People Youth
          Koreatown Immigrant Workers Alliance
          La Raza Centro Legal
          Movement Generation Justice & Ecology Project
          Movement Strategy Center
          Mujeres Unidas Y Activas 
          National Domestic Workers Alliance
          National Employment Law Project
          National Network for Immigrant and Refugee Rights
          North Bay Immigrant Youth Union
          North Bay Jobs with Justice
          Office & Professional Employees International Union, Local 3







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          Orange County Immigrant Youth United
          Pilipino Association of Workers and IM/Immigrants - Silicon  
          Valley
          Pilipino Workers Center of Southern California
          PolicyLink
          Pomona Economic Opportunity Center
          Progressive Workers Alliance of San Francisco
          Public Counsel
          Restaurant Opportunities Centers United
          Restaurant Opportunities Centers United-Los Angeles
          Sailors Union of the Pacific
          San Francisco Labor Council
          San Francisco Women against Rape
          Santa Clara County Wage Theft Coalition
          SEIU - United Service Workers West
          SEIU California
          Senior and Disability Action
          Services Immigrant Rights & Education Network
          Swiss Cheese Childcare Cooperative
          Temple Beth Hillel, North Hollywood 
          Temple Judea
          The Full Rights, Equality, and Empowerment San Francisco  
          Coalition
          The Greenlining Institute
          The Kitchen San Francisco
          The Women's Collective/La Colectiva de Mujeres
          UNITE HERE! 
          United Domestic Workers of America - AFSCME LOCAL 3930/ AFL-CIO
          United Educators of San Francisco
          Voices for Progress
          Wage Justice Center
          Women's Employment Rights Clinic of Golden Gate University  
          School of Law
          WorkSafe
          Young Workers United
          PODER!
          9 to 5 Los Angeles 
          3-individuals
          

          OPPOSITION
          
          California Association for Health Services at Home (CAHSAH)
          Care to Stay Home 
          Comfort Keepers







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          AAA T.L.C. Health Care, Inc.
          Innovative Healthcare Consultants
          3-individuals


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