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 --