BILL ANALYSIS
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Date of Hearing: June 23, 2010
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
ACR 163 (V. Manuel Perez) - As Amended: June 16, 2010
SUBJECT : Domestic worker rights.
SUMMARY : Encourages greater protections in federal and state
law for domestic workers. Specifically, this resolution :
1 Makes the following legislative statements:
a) California's domestic workers-comprised of housekeepers,
nannies, and caregivers for children, persons with
disabilities, and the elderly-work in private households to
care for the health, safety, and well-being of the most
important aspects of Californians' lives, their families
and homes.
b) Domestic workers play a critical role in California's
economy, working to ensure the health and prosperity of
California families and freeing others to participate in
the workforce, which is increasingly necessary in these
difficult economic times.
c) Domestic workers across the state of California have
joined together to form the California Domestic Workers'
Coalition to achieve social and economic justice and secure
much-needed protections for domestic workers under
California's labor laws.
d) The National Domestic Workers Alliance is organizing
domestic workers across the United States to end the
exclusion of domestic workers from federal labor
protections, and the International Domestic Workers
Network, made up of domestic worker organizations across
the world, has formed to fight exploitation and abuse by
creating and advancing international standards in the
industry.
e) The treatment of domestic service workers under federal
and state laws has historically reflected stereotypical
assumptions about the nature of domestic work, specifically
that the relationship between employer and "servant" was
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"personal," rather than commercial, in character; that
employment within a household was not "real" productive
work; and that women did not work to support their
families.
f) The Fair Labor Standards Act of 1938, which Congress
enacted to ensure a fair day's pay for a fair day's work,
excluded domestic workers from its protection at a time
when 60 percent of African American women workers were
employed as domestic workers.
g) The vast majority of domestic workers are women of color
and immigrants who, because of race and sex discrimination
and fear of deportation, are particularly vulnerable to
unlawful employment practices and abuses.
h) Domestic workers usually work alone, behind closed
doors, and out of the public eye, leaving them isolated,
vulnerable to abuse and exploitation, and unable to
advocate collectively for better working conditions.
i) Domestic workers often labor under harsh conditions,
work long hours for low wages without benefits or job
security, and face termination without notice or severance
pay, leaving many suddenly without both a job and a home.
j) Most domestic workers work to support families and
children of their own and more than half are primary income
earners, yet two-thirds of domestic workers earn low wages
or wages below the poverty line.
aa) Many live-in domestic workers are not permitted to make
basic decisions regarding the food they eat or to cook or
heat their meals.
bb) In the worst cases, domestic workers are verbally and
physically abused or sexually assaulted, forced to sleep in
conditions unfit for human habitation, and stripped of
their privacy and dignity.
cc) Many employers desire to treat their caregivers and
housekeepers fairly, but do not have the information to
guide them in setting terms of employment, and may never
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develop a formal contract or clearly establish the rights
and obligations each party owes to the other.
dd) Domestic workers are still excluded from the most basic
protections afforded the rest of the labor force under
state and federal law, including the rights to fair wages,
safe and healthy working conditions, workers' compensation,
protection from discriminatory and abusive treatment, and
to engage in collective bargaining.
ee) Domestic workers are excluded under the National Labor
Relations Act, leaving them unprotected when asking for
respect of their basic rights and unable to collectively
bargain for conditions allowing them to labor in dignity.
ff) Domestic workers whose primary work is to care for
children, the elderly, or persons with disabilities are
excluded from overtime protections, meal and rest breaks,
and reporting time pay under California law, and the
federal Fair Labor Standards Act exempts live-in domestic
workers from overtime provisions and exempts "companions"
for the elderly and "casual" babysitters from federal
minimum wage and overtime provisions.
gg) Domestic workers are excluded from the protections of
the California Occupational Safety and Health Act of 1973
and therefore do not have the right to work in a healthy
and safe environment, leaving them exposed to dangerous and
unhealthy working conditions on a regular basis.
hh) Household employees who work less than 52 hours in the
90 days prior to sustaining an injury are excluded from
California workers' compensation coverage, leaving many
domestic workers without an adequate remedy for injuries
suffered in the course of their employment.
ii) Because state and federal antidiscrimination laws apply
only to employers with certain minimum numbers of
employees, domestic workers are often unprotected against
discrimination based on race, color, religion, sex,
national origin, age, and disability.
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jj) Because domestic workers do not have the right to a
minimum number of consecutive hours of uninterrupted sleep,
they are often woken up repeatedly throughout the night,
leaving them sleep-deprived, vulnerable to illness, and
unable to provide proper care for those in their charge.
aaa) Because the vast majority of domestic workers receive no
health benefits from their employers and have no right to
paid sick days, many workers cannot take time off to deal
with illness or medical emergencies, thereby endangering
their own health and the health of the families they care
for.
2)Resolves the following:
a) That coverage of domestic workers under state and
federal labor law should be an expression of respect for
their dignity and equality and the importance of the work
they perform, and a rejection of antiquated and
long-discredited stereotypes about domestic work.
b) That the Legislature finds that domestic workers are
entitled to industry-specific protections and labor
standards that eliminate discriminatory provisions in the
labor laws and guarantee domestic workers basic workplace
rights to ensure that domestic workers are treated with the
respect and dignity they so richly deserve.
COMMENTS : This resolution encourages greater protections in
federal and state law for "domestic" or "household" workers.
General Background on Domestic Workers
"Domestic workers" or "household workers" are generally
comprised of housekeepers, nannies and caregivers of children
and others who work in private households to care for the
health, safety and well-being of those under their care.
A recent study generally summarizes the general status of
domestic workers as follows:
"[Domestic] workers work in the private homes of their
employers, performing tasks such as in-home child, patient,
and elder care, housework, and cooking. They are primarily
female immigrants; some live in the home of their employer
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working around the clock, while others work in various
households where the work is temporary and sporadic. Many
are 'unaffiliated' workers, meaning they have no connection
to a hiring or temporary agency. The independent, private,
often isolated nature of domestic labor means that
household workers often lack information about their rights
or knowledge of the laws of this country and are frequently
exploited by employers. Those who are undocumented live in
constant fear of being deported. While supporting their
employers' homes and families, household workers frequently
find themselves working in substandard and often
exploitative conditions, earning poverty wages too low to
support their own families, and lacking access to basic
health care. Their vulnerable situation subsidizes the
productivity and affluence of the U.S. economy and yet this
occupation is little understood and marginalized by the
larger society and policymakers."<1>
Advocates contend that domestic workers often labor under harsh
conditions, work long hours for low wages without benefits or
job security, and face termination without notice or severance
pay leaving many suddenly without income. In the worst cases
domestic workers are verbally and physically abused or sexually
assaulted, and stripped of their privacy and dignity.
Treatment Under Federal and State Labor Laws
In general, domestic workers are largely excluded from some of
the more basic protections afforded to other workers under state
and federal law, including the rights to overtime wages, safe
and healthy working conditions, workers' compensation,
employment discrimination and the right to engage in collective
bargaining.
One useful analysis includes the following overview of the
treatment of domestic workers uder California law:
"In California, 'all persons employed in household
occupations, whether paid on a time, piece rate,
commission, or other basis' are entitled to be paid the
state minimum wage. Live-in domestic workers cannot be
-------------------------
<1> "Behind Closed Doors: Working Conditions of California's
Household Workers." Mujeres Unidas y Activas, Day Labor Program
Women's Collective of La Raza Centro Legal, Data Center (March
2007), p. 2.
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charged for food or housing without a voluntary, written
agreement. Like its federal counterpart, California wage
and hour laws exclude personal attendants. However,
personal attendants, whether live-in or not, are entitled
to the California minimum wage if they spend more than
twenty percent of their time doing other housework.
Non-live-in domestic workers are entitled to overtime pay
under California law under the same conditions as under
federal law; however, in California such workers are also
entitled to rest periods. Ten minute rest periods and a
thirty minute meal period are considered on-duty and
counted as time worked, unless the employee is relieved of
all duty during the meal period.
Live-in domestic workers are entitled to overtime only if
they work more than nine hours in a workday or if they work
on the sixth or seventh workday. These workers must be
given at least 12 consecutive off-duty hours on any
workday. Work during off duty time is compensable as
overtime. Personal attendants are not entitled to meal
breaks or rest breaks.
All domestic workers in California are entitled to be free
from sexual harassment.
Many domestic workers are entitled to workers' compensation
benefits if they are injured on the job. To qualify for
benefits under California's Worker Compensation Law,
domestic workers must work more than 52 hours during the 90
days prior to injury and must have earned $100 or more
during the same 90 days.
Though rights and protections are relatively broad in
California, domestic workers still do not enjoy the full
complement of employment protections provided to most of
the state's workers. Domestic workers may suffer
discrimination, since California's Fair Employment and
Housing Act only prohibits employers with five or more
employees from discrimination on the basis of race, sex,
religion, national origin, pregnancy, age, disability,
marital status, sexual orientation, gender identity, or on
the basis of an English only policy. California
occupational safety and health law excludes 'household
domestic service.' Domestic workers who provide 'domestic
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service in a private home' are excluded from obtaining
unemployment insurance benefits unless the worker was paid
$1000 or more in any calendar quarter in the calendar year
or the preceding year. Undocumented immigrant workers are
not eligible to collect unemployment insurance in
California.
California employment and labor law provides most domestic
workers with minimum wages and maximum hours, workers'
compensation for injuries on the job, and protection from
sexual harassment. However, domestic workers in California
are left without many of the basic legal protections
afforded to other workers in this state."<2>
Spotlight on Overtime Protection Under California Law
As discussed above, domestic workers are excluded from most
labor and employment law protections under California law.
However, the payment of overtime is one particular issue of
disparity that has garnered significant attention in recent
years - and is therefore worth addressing in some detail.
Under existing law for most non-exempt employees, any work in
excess of eight hours day, in excess of 40 hours a week, and the
first eight hours on the seventh day of work must be compensated
at no less than one and one-half times the regular rate of pay.
Existing law also requires that any work in excess of 12 hours a
day and in excess of eight hours on the seventh day of work are
to be compensated at no less than twice the regular rate of pay.
Treatment of "Personal Attendants" Under the Industrial Welfare
Commission Wage Orders
In 1986, the Industrial Welfare Commission (IWC) adopted a
complete exemption from the overtime provisions and other
requirements of the Wage Orders for individuals employed as
"personal attendants." The minimum wage exemption was
eliminated on January 1, 2001 thereby entitling "personal
attendants" to the state minimum wage for all hours worked.
However, as discussed below, a partial or complete overtime
exemption continues to exist for "personal attendants" under the
---------------------------
<2> Left Out: Assessing the Rights of Migrant Domestic Workers
in the United States, Seeking Alternatives." Human Rights
Center, UC Berkeley International Human Rights Clinic, Boalt
Hall School of Law (November 2003), pp. 5-7.
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IWC Wage Orders.
1. IWC Wage Order 15
IWC Wage Order 15 applies to "household occupations," defined as
all services related to the care of persons or maintenance of a
private household or its premises by an employee of a private
householder.
Under Wage Order 15, "personal attendants" are defined as
including:
"babysitters and means any person employed by a private
householder or by
any third party employer recognized in the health care
industry to work in a
private household, to supervise, feed, or dress a child or
person who by reason
of advanced age, physical disability, or mental deficiency
needs supervision."
"Personal attendants" are completely exempt from the general
overtime requirements of Wage Order 15. Therefore, "personal
attendants" are only required to be paid straight-time for all
hours worked, regardless of whether they work more than eight
hours in a day or 40 hours in a week.
Wage Order 15 also specifies that the status of "personal
attendant" shall apply when no significant amount of work other
than the foregoing is required. This limitation is intended to
prevent the overtime exemption from applying to employees who
work in households but who are not "personal attendants". Under
this limitation, an employee who performs some of the work of a
"personal attendant" but also a significant amount of other work
falls outside of the exemption.
A recent opinion letter issued by the Division of Labor
Standards Enforcement (DLSE) that sought to clarify the
definition of "personal attendants" under Wage Order 15 stated
the following:
"We cannot provide you with a comprehensive list of
acceptable duties for
a personal attendant. However, it is instructional, and
not inconsistent with
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the long standing DLSE position, to consider those duties
included by the U.S.
Department of Health and Human Services National Center for
Health Statistics'
definitions for activities of daily living. Such
activities relate to personal care
and include, but are not limited to, such duties as
bathing, showering, getting in
or out of a bed or chair and using a toilet. 'Supervising'
may also include
assistance in obtaining medical care, preparing meals,
managing money, shopping for groceries and personal items,
using a telephone or performing housework when such
activities are related to the independent living of the
person and cannot be performed by him or herself alone due
to a health or age limitation. It must be noted, however,
that any general housekeeping duties performed should not
exceed 20% of the weekly working time spent by the personal
attendant to maintain his or her exemption under IWC Wage
Order 15."
Wage Order 15 also has specific provisions related to "live-in"
household employees who are not "personal attendants." First,
Wage Order 15 specifies that a live-in employee shall have at
least 12 consecutive hours free of duty during each workday of
24 hours, and the total span of hours for a workday shall be no
more than 12 hours. Wage Order 15 also specifies that a live-in
employee shall have at least three hours free of duty during the
12 hour span of work. Finally, a live-in employee who works
during scheduled off-duty hours or during the 12 consecutive
off-duty hours is entitled to overtime for such hours.
The net result is that a live-in employee essentially works a
nine hour day and is entitled to overtime for any hours worked
beyond that. However, as discussed above, an employee who is a
"personal attendant" is completely exempt from overtime under
Wage Order 15.
2. IWC Wage Order 5
Wage Order 5 (which covers the "public housekeeping" industry
and includes home health aides) contains a partial overtime
exemption for "personal attendants" that is narrower than the
exemption contained in Wage Order 15 and applies to individuals
employed by nonprofit organizations.
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Under Wage Order 5, a "personal attendant" is defined as
including:
"babysitters and means any person employed by a non-profit
organization covered by this order to supervise, feed or
dress a child or person who by reason of advanced age,
physical disability or mental deficiency needs
supervision."
Under Wage Order 5, a "personal attendant" may work up to 40
hours and six days in a workweek without overtime. Therefore,
"personal attendants" under Wage Order 5 may work over eight
hours in a day without receiving overtime, as long as their
total hours for the week do not exceed 40.
3. Federal Exemption for "Companions"
It may also be useful to point out the federal exemption for
"companions" under the Fair Labor Standards Act (FLSA), which is
much broader than the exemption under state law.
The FLSA provides an exemption to minimum wage and overtime
requirements for individuals employed in domestic service
employment to provide babysitting services on a casual basis, or
to provide companionship services for individuals who are unable
to care for themselves because of age or infirmity. Companion
services include "those services which provide fellowship, care
and protection for a person who, because of advanced age or
physical or mental infirmity, cannot care for his or her own
needs. It does not include services that require and are
performed by trained personnel, such as a registered nurse or a
practical nurse.
FLSA regulations state that companionship services may include
household work related to the care of the aged or infirm person
such as meal preparation, bed making, washing clothes, and other
similar services. Companions may perform general household work
as long as such work is incidental and does not exceed 20
percent of the total weekly hours worked. Household work
related to the care of the individual is not counted towards
this 20 percent limitation.
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PRIOR LEGISLATION
AB 2536 (Montanez) of 2006 was the most ambitious legislation
aimed at these issues in recent history. As introduced, AB 2536
would have eliminated the overtime exemption under California
law for most "personal attendants." There was significant
opposition, and the bill was subsequently narrowed to generally
apply only to nannies.
AB 2536 was vetoed by Governor Schwarzenegger, who stated the
following in his veto message:
"This bill would require overtime payment for personal
attendants who are nannies. The existing overtime
exemption was intended to keep these jobs above ground and
to allow those in need of such services to find assistance
at a price they can afford. Removing this exemption would
dramatically increase the costs of these attendants and
potentially drive employment underground.
I am also concerned that this bill creates new liquidated
damages penalties against employers of all household
workers, not merely nannies. In short, this bill subjects
seniors and the severely disabled who hire household
workers to a new cause for civil litigation. Given the
increase in frivolous labor law litigation in recent years,
I cannot support subjecting seniors and the disabled to
additional liability."
PENDING NEW YORK LEGISLATION
Legislation on domestic worker rights has been pending in New
York for a number of years. However, there are indications that
actual enactment of such legislation may be imminent.
Last year, the New York State Assembly passed a domestic worker
"bill of rights." On June 1, 2010, the New York State Senate
passed a similar measure that, among other things, would require
paid holidays, sick days and vacation days for domestic workers,
along with overtime wages. The legislation would also require
14 days' notice (or termination pay) before a domestic worker
could be terminated.
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Lawmakers involved with the legislation have indicated that
after the two versions of the bill are reconciled, they
anticipate that Governor David A. Paterson will sign the bill.
The law, should it be enacted, would be the first of its kind in
the nation and would affect an estimated 200,000 domestic
workers in the State of New York.
RECENT OVERSIGHT HEARING
On June 9, 2010, this Committee convened an oversight hearing
entitled, "Behind Closed Doors: Working Conditions of California
Domestic Workers." That hearing featured testimony by domestic
workers, academics, lawyers, worker advocates, public health
officials and others. The hearing explored in detail the
working conditions of domestic workers in California and the
status of state and federal laws that apply (or do not apply) to
domestic workers.
ARGUMENTS IN SUPPORT :
Supporters argue that domestic workers are among the most
vulnerable workers in California, yet have the least
protections. A largely immigrant workforce, domestic workers
work in private homes, out of the public eye and largely outside
of the law's protections. They are specifically excluded from
many minimal labor standards and are often subjected to abuse
and mistreatment.
Supporters state that domestic workers, like all workers,
deserve a safe workplace free from harassment and intimidation.
They deserve fair wages and the ability to enforce their rights
when they are violated. They deserve the respect and dignity
owed all workers and the legal protections to make that a
reality.
REGISTERED SUPPORT / OPPOSITION :
Support
9to5 California, National Association of Working Women
Asian Pacific American Legal Center of Southern California
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California Domestic Worker Rights Coalition
California Immigrant Policy Center
California Labor Federation, AFL-CIO
California Nurses Association/ National Nurses Organizing
Committee
California Partnership
California Rural Legal Assistance Foundation
Chinese Progressive Association of San Francisco
City and County of San Francisco, Department of Public Health
Coalition for Humane Immigrants Rights of Los Angeles
Coalition to Abolish Slavery and Trafficking
Ella Baker Center for Human Rights
Filipino Advocates for Justice
Golden Gate University Women's Employment Rights Clinic
Graton Day Labor Prgram
Instituto de Educacion del Sur de California
Labor Project for Working Families
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Mujeres Unidas y Activas
National Korean American Service and Education Consortium
National Lawyers Guild - Labor and Employment Committee
Numerous Individuals
Our Lady of the Holy Rosary Church
People Organized to Win Employment Rights
Pilipino Worker Center
Rajiv Bhatia, M.D., Director of Environmental Heath, S.F. Dept.
of Public Health
Salvadoran-American Leadership and Educational Fund
San Francisco Day Labor Program, Women's Collective of La Raza
Centro Legal
Service Employees International Union
Services, Immigrants Rights and Education Network
Southern California Coalition for Occupational Safety and Health
UCLA Center for Labor Research and Education
Women's Foundation of California
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091