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
-----------------------------------------------------------------
|Author: |Leyva |
|-----------+-----------------------------------------------------|
|Version: |February 11, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Alma Perez-Schwab |
| | |
-----------------------------------------------------------------
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
SB 1015 (Leyva) Page 2
of ?
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.
SB 1015 (Leyva) Page 3
of ?
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
SB 1015 (Leyva) Page 4
of ?
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.
SB 1015 (Leyva) Page 5
of ?
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
SB 1015 (Leyva) Page 6
of ?
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
SB 1015 (Leyva) Page 7
of ?
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.
SB 1015 (Leyva) Page 8
of ?
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
SB 1015 (Leyva) Page 9
of ?
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
SB 1015 (Leyva) Page 10
of ?
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
SB 1015 (Leyva) Page 11
of ?
AAA T.L.C. Health Care, Inc.
Innovative Healthcare Consultants
3-individuals
-- END --