BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: SB 1344 Hearing Date: April 13,
2016
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|Author: |Stone |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Brandon Seto |
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Subject: Domestic work employees
KEY ISSUE
Should the Legislature allow certain domestic work employees,
through agreement with their employers, to deduct a scheduled
sleeping period from their pay?
ANALYSIS
Existing law
Uses regulations created by the Industrial Welfare
Commission (IWC) to determine the wages, hours, and
conditions of labor and employment in the various
occupations, trades, and industries in California (Labor
Code §1173).
Defines "Domestic work" as services related to the care
of persons in private households or maintenance of private
households or their premises. This includes childcare
providers, caregivers of people with disabilities, sick,
convalescing, or elderly persons, house cleaners,
housekeepers, maids, and other household occupations (Labor
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Code §1451).
Defines a "Domestic work employee" as an individual who
performs domestic work including live-in domestic work
employees and personal attendants (Labor Code §1451).
Requires wages to be paid for "hours worked" defined in
IWC Wage Order No. 15 for household occupations, including
domestic workers, as the time during which an employee is
subject to the control of an employer, and all the time the
employee is suffered or permitted to work, whether or not
required to do so (IWC Wage Order No. 15, §2[H]).
Existing federal law
Permits under the federal Fair Labor Standards Act
(FLSA), that an employer and employee may agree to deduct a
bona fide regularly-scheduled sleeping period of not more
than 8 hours from hours worked, provided adequate sleeping
facilities are furnished by the employer and the employee
can usually enjoy an uninterrupted night's sleep (Title 29,
Part 785 of the Code of Federal Regulations, §785.22 [a]).
Requires that if the sleeping period is interrupted by a
call to duty, the interruption must be counted as hours
worked. If interruptions prevent the employee from getting
a reasonable night's sleep, which is considered to be five
uninterrupted hours, the entire period must be counted.
(Title 29, Part 785 of the Code of Federal Regulations,
§785.22 [b]).
This Bill
Allows live-in domestic work employees or those on duty
for 24 or more consecutive hours to enter into a written
agreement with their employers to exclude a
regularly-scheduled sleeping period from hours worked, and
thus from employee pay.
Lays down the following terms regarding the agreement:
1) The scheduled sleeping period should not be
more than eight hours of uninterrupted sleep if the
employee has eight hours free of duty and available
for continuous, uninterrupted sleep.
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2) If the sleeping period is interrupted by an
emergency, only time spent working during the
emergency shall constitute hours worked.
COMMENTS
1. Need for this bill?
A recent California Supreme Court ruling in the case of
Mendiola v. CPS Security Solutions, Inc., S212704 (2015)
denied federal sleep time deductions for employees that fall
under Wage Order No. 4 which shares similarities with Wage
Order No. 15. The court determined that the federal sleep
time deduction was not valid in this case because it is not
specifically cited in the wage order itself. The ruling in
the Mendiola case has created great uncertainty for home care
agencies with employees who fall under Wage Order No. 15,
which like Wage Order 4 does not cite the federal sleep time
deduction.
The author states that this bill is needed to fix the
uncertainty created by the decision in the Mendiola v. CPS
Security Solutions, Inc. case to ensure that those providing
care under Wage Order No. 15 are able to utilize a sleep time
exemption similar to the one allowed in the federal Fair Labor
Standards Act.
2. Background on the Mendiola v. CPS Security Solutions, Inc.
Case
This case came about when security guards employed by CPS
Security Solutions, Inc. filed a class-action lawsuit alleging
that the 24-hour shifts and on-call time required by the
company constituted "hours worked" under Wage Order No. 4.
During these shifts the guards were required to reside in
company trailers on their job sites. The California Supreme
Court examined whether the guards were entitled to
compensation for these on-call hours and if sleep time could
be excluded from their hours worked.
These guards worked a weekday shift that consisted of patrol
for 8 hours, followed by 8 hours of on-call time, and finally
8 hours off-duty. On weekends they patrolled for 16 hours and
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then were on-call for 8 hours. At the heart of this matter,
was the issue of employer control as part of the "hours
worked" definition specified in Wage Order No. 4 for CPS's
workers, and also specified in Wage Order No. 15 as the time
during which an employee is subject to the control of an
employer.
The issue of employer control in defining "hours worked"
revolves around the possibility that although an employee may
not be working at a given time in a shift, they are still
subject to regulation, restriction, and engagement by their
employer. This means that they often must abide by certain
standards, including requirements about their physical
location at their place of employment even if they are not
actually on-duty. Also, the fact that employees might be
called to work even if they are on-site, but off-duty creates
another possible type of employer control.
In the Mendiola case, nearly all of these aspects of employer
control occurred. CPS required its on-call guards to reside
in a company trailer and imposed numerous restrictions on a
guard's activities and movements throughout their entire
24-hour shifts. CPS also paid guards an hourly rate for their
time spent on patrol but not for on-call or sleep time unless
the guard was engaged to work because of something like a
disturbance that required their attention or investigation.
Because of these many restrictions, and the fact that the
guards spent their on-call time primarily for the benefit of
the company by remaining on-site as a deterrent, the court
determined that all time that the guards spent on-call should
be compensated by CPS. This is due to the fact that the
employers exercised control over these employees during these
times, which qualifies as "hours worked" under Wage Order No.
4.
The court also ruled that CPS could not utilize the federal
FLSA sleep time exemption, even though the employees worked a
24-hour shift, because Wage Order No. 4 does not expressly
authorize it. Therefore, CPS had to pay its guards for time
designated for sleep.
3. This Bill's Relationship with Federal Law
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Wage Order No. 15, which covers domestic workers, is very
similar to Wage Order No. 4 regarding the issues in question
in the Mendiola case. Wage Order No. 15 includes the
definition of "hours worked" that includes times when an
employee is under an employer's control. Neither wage order
specifies a sleep time exemption. The author would like to
include a sleep time exemption for domestic workers based on
the one allowed under federal law.
However the author's language in the bill differs from federal
standards regarding sleep time exemptions:
1) Title 29, Part 785 of the Code of Federal
Regulations, §785.22 (a) permits an
employer-employee agreement to exclude sleep time
provided adequate sleeping facilities are furnished
by the employer and the employee can usually enjoy
an uninterrupted night's sleep. This condition is
not specified in this bill.
2) Although the bill states that under these
agreements if sleep is interrupted by an emergency,
only time spent working during an emergency can be
compensated, Title 29, Part 785 of the Code of
Federal Regulations, §785.22 (b) states that if the
sleep period is interrupted to such an extent that
the employee cannot get a reasonable night's sleep,
the entire period must be counted.
3) This bill does not take these conditions
or possible employer control into consideration. An
employee party to an agreement described in the bill
has no guarantees for any minimum amount of required
sleep time. The bill states that an employee must
have eight hours available to sleep, but not does
ensure that an employee will sleep for any set
portion of that time or be compensated fully for
possible interrupted sleep.
o In this scenario, an employee
could potentially be woken-up to attend to an
emergency multiple times during their scheduled
sleep period. Even if those interruptions
lasted for only a brief time, the employee may
not have gotten a reasonable night's sleep or
received adequate compensation.
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4. Proponent Arguments :
Proponents believe that this bill permits both home care
agencies and their aides to provide affordable 24-hour live-in
care for seniors and other frail Californians. Seniors depend
on private home care services to stay healthy in their own
homes and to avoid institutionalization. Their specific and
unique needs require flexibility in how a home care provider
can best provide that care. This has been accomplished through
exemptions in labor law, which keeps the cost of care
affordable. SB 1344 would fix the uncertainty created by the
Mendiola case and would ensure that those who provide care
under Wage Order No. 15 are able to continue using the sleep
time deductions specified under the federal Fair Labor
Standards Act.
5. Opponent Arguments :
Opponents argue that many domestic workers are routinely woken
throughout the night and expected to be alert and responsive
to their employer's needs around-the-clock. Live-in workers
often do not get enough sleep, which increases their
susceptibility to illness and injury, while harming their
ability to give optimal support to their employers.
Opponents state that SB 1344 proposes to make the current
situation even worse by allowing individual domestic workers
to sign agreements waiving their right to be paid for time
they are on the employer's premises, subject to the employer's
control, and required to respond at a moment's notice.
Opponents claim that characterizing these agreements as a
voluntary choice ignores both the unique vulnerability of many
domestic workers and the tremendous power imbalance in many of
these employment settings. In reality, many workers would be
compelled or forced to sign away these rights and would
forfeit both their wages and freedom.
6. Prior and Related Legislation :
SB 1015 (Leyva), currently referred to the Senate
Appropriations Committee - deletes the January 1, 2017, sunset
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date of the Domestic Worker Bill of Rights.
AB 241 (Ammiano), Chapter 374, Statutes of 2013 - enacted the
Domestic Worker Bill of Rights to, until January 1, 2017,
regulate the hours of work of certain domestic work employees
and provide an overtime compensation rate for those employees.
Also, this bill defined various terms for the purposes of the
act, including defining domestic work to mean services related
to the care of persons in private households or maintenance of
private households or their premises.
SUPPORT
California Association for Health Services at Home (Sponsor)
Luxe Homecare, Inc. (Co-Sponsor)
1-Individual
OPPOSITION
American Federation of State, County and Municipal Employees,
AFL-CIO
California Domestic Workers Coalition
Service Employees International Union
United Domestic Workers of America-AFSCME Local 3930, AFL-CIO
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