BILL ANALYSIS                                                                                                                                                                                                    ”






                                                                    SB 1015


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          Date of Hearing:  June 22, 2016


                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT


                               Roger HernŠndez, Chair


          SB  
          1015 (Leyva) - As Introduced February 11, 2016


          SENATE VOTE:  25-10


          SUBJECT:  Domestic work employees:  labor standards


          SUMMARY:  Deletes the sunset date on the Domestic Worker Bill of  
          Rights, which granted overtime compensation to specified  
          domestic workers. 





          EXISTING LAW:


          1)Establishes the Domestic Worker Bill of Rights to regulate the  
            hours of work of specified domestic work employees who are  
            personal attendants and provides an overtime compensation rate  
            for those employees after nine hours in one day and 45 hours  
            in one workweek.


          2)Requires the Governor to convene a committee to study and  
            report on the effects of this law on personal attendants and  











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            their employers.


          3)Sunsets the Domestic Worker Bill of Rights on January 1, 2017.


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.  
           


          COMMENTS:  AB 241 (Ammiano) of 2013 enacted the Domestic Worker  
          Bills of Rights to grant overtime compensation to specified  
          domestic workers after 9 hours in one day and 45 hours in one  
          workweek.  AB 241 contained a January 1, 2017 sunset date.  This  
          bill proposes to eliminate that sunset date, thereby making  
          those overtime provisions permanent.

          AB 241 also required the Governor to convene a committee to  
          study and report on the effects of this law on personal  
          attendants and their employers.  The Labor and Workforce  
          Development Agency (LWDA) has convened meetings and solicited  
          input from stakeholders, but a report has not yet been released.  
           LWDA indicates that the report will be released this summer.
          
          Background on Domestic Workers at the Federal Level

          In 1938, the U.S. Congress enacted the Fair Labor Standards Act  
          (FLSA) 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.  Casual babysitters and  
          domestic service workers employed to provide "companionship  
          services" for an elderly person or a person with an illness,  











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          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, the FLSA does  
          not contain a daily overtime requirement.  



          The Growing Need for Domestic Workers






          According to a report<1> from the UCLA Labor Center, 16% of  
          households or 2 million households in California employ domestic  
          workers to provide care for children, housecleaning, and support  
          for seniors and people with disabilities.  The report found that  
          due to health and medical advancements and the aging of the baby  
          boomer generation, the U.S. is experiencing an unprecedented  
          "elder boom," and domestic workers help empower the independence  
          of seniors. There has been a shift in recent years around  
          ---------------------------
          <1>


           Profile, Practices, and Needs of California's Domestic Work  
          Employers, University of California Los Angeles Labor Center:  
           http://www.labor.ucla.edu/publication/domestic-employers-report/ 










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          societal expectations that people with illnesses and  
          disabilities will be able to live at home with appropriate  
          assistance, rather than in nursing facilities.  Long-term  
          support for seniors and people with disabilities is, about half  
          the time, informally provided by friends and family members,  
          usually a spouse or an adult daughter. 



          Professional domestic work, however, provides an alternative to  
          assisted living and nursing facilities, and can allow informal,  
          familial caregivers to take up needed employment.  By 2022, the  
          number of personal care aides in California will have increased  
          by 52% to over half a million workers.  It is estimated that  
          about half of those turning 65 today will need some form of long  
          term support. 



          Prevalence of Inadequate or Illegal Pay and Substandard  
          Conditions among Domestic Workers 


          


          The National Domestic Worker Alliance performed a survey to  
          analyze data on domestic work and workers in 14 United States  
          cities.  The sample analyzed in the report<2> includes 631  
          domestic workers in four metropolitan areas in California: Los  
          Angeles, San Diego, San Francisco, and San Jose.  The report  
          examines conditions in the industry and presents the results of  
          nannies, housecleaners, and caregivers who are employed directly  
          by private households.  This provides context on the large,  
          ---------------------------


          <2> Home Truths: Domestic Workers in California. National  
          Domestic Workers Alliance Data Center at the Center for Urban  
          Economic Development, University of Illinois at Chicago:  
           http://www.domesticworkers.org/sites/default/files/HomeTruths.pdf 
           








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          informal labor market of domestic work.  The report reveals that  
          domestic workers, who labor without many of the protections  
          afforded most other workers in the U.S., face a range of  
          hardships associated with their work in an industry that is  
          largely invisible and unregulated.





          Specifically the report finds that low pay is a systemic problem  
          across the industry, and workers rarely receive employment  
          benefits.  Their findings declare that 25 percent of domestic  
          workers are paid below the California minimum wage, the result  
          of a combination of poorly delineated tasks, long workdays, and  
          low pay.  Using a conservative measure of income adequacy, 61%  
          of workers are paid an hourly wage at their primary job that is  
          below the level needed to adequately support a family (analysis  
          using the Lower Living Standard Income Level guideline).  Less  
          than 1 percent receives retirement or pension benefits.  Only 6  
          percent work for employers who pay into Social Security.  Just 1  
          percent work for employers who pay into workers' compensation,  
          and only 2 percent receive employer-provided health insurance  
          coverage.





          Survey data was analyzed to determine the hourly wages paid by  
          workers' "primary" employer, the employer for whom the most  
          hours were worked in the previous week.  The median hourly wage  
          for the domestic workers surveyed is $10.00 an hour.  Fully  
          one-quarter (25%) of survey respondents are paid less than the  
          California minimum wage ($8 per hour at the time of the survey),  
          the result of a combination of poorly delineated tasks, long  
          workdays, and low pay. Sixteen percent put in more than 40 hours  
          of work per week for their primary employer, but rarely are  
          domestic workers paid time-and-a-half for overtime hours.  Many  











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          are paid a flat rate that does not change according to the  
          actual number of hours worked.  The tendency within private  
          households is for work tasks to expand and for the workday to  
          lengthen, often driving pay below the state minimum wage.





          The report also highlights the low pay and substandard  
          conditions faced by domestic workers, and how most workers and  
          their families face financial hardships. 58 percent of domestic  
          workers spend more than half their income on rent. 35 percent  
          paid rent late in the prior 12 months. 39 percent of workers had  
          to pay essential bills late in the last month. 23 percent had no  
          food to eat in the last month because they lacked resources to  
          obtain it-an extreme form of food insecurity.  The report argues  
          that while not all domestic work employers treat their nannies,  
          caregivers, and housecleaners poorly, the lack of enforceable  
          standards increases the likelihood of mistreatment.  They call  
          for sensible policies that protect domestic workers on the job  
          are needed to redress the substandard conditions that exist in  
          the industry.





          Argument in Support





          The California Domestic Workers Coalition, the sponsor of this  
          measure, writes in support: 














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            "This bill would make permanent California's current overtime  
            law for domestic workers. The law was first enacted in January  
            of 2014 to finally provide overtime pay to domestic workers  
            who have been excluded from many labor protections for  
            decades.  Domestic workers are primarily immigrant women that,  
            as a result of the uneven application of labor laws, have been  
            denied basic protections afforded to other workers.  Domestic  
            workers often work around the clock to fulfill the requests of  
            their employers and meet the needs of their own families.  The  
            unique nature of their work and constant isolation permits  
            unscrupulous employers to exploit this hard-working labor  
            force.  The path towards dignifying domestic work started many  
            years ago.  The legislative effort began in 2012, through AB  
            899.  That initial version, which sought more comprehensive  
            protections for workers, was ultimately vetoed by Governor  
            Brown.  Undeterred and with a renewed focus, the coalition, in  
            2013, fought to pass Assembly Bill 241 (known as the Domestic  
            Workers Bill of Rights).  Under AB 241, overtime protections  
            were established for personal attendants who care for and  
            provide support for thousands of individuals and families in  
            California.  However, the legislation carried a sunset  
            provision, thus making these protections provisional, ending  
            at the end of 2016 unless made permanent.  The California  
            Domestic Workers Coalition, its members and allies, have  
            reached out to many workers to educate them about their  
            rights. We have witnessed a growing recognition of the law,  
            and compliance.  We have witnessed growth in the confidence of  
            workers, with their work affirmed as legitimate work, and an  
            improvement in their ability to advocate for dignified working  
            conditions.  Only through making this law permanent can these  
            efforts be fully effective.  By making the law permanent, the  
            legislature will dignify this profession, the work of  
            supporting our families, seniors, and people with  
            disabilities.  The population that will need personal  
            attendants continues to grow in our state; SB 1015 will help  
            ensure fair and just standards that will result in better care  
            for both the workers and the people they attend to." 











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          The California Alliance for Retired Americans writes in support,  
          "As a retiree organization which champions the rights of  
          seniors, the California Alliance for Retired Americans (CARA)  
          cares about how domestic workers are treated.  We want to ensure  
          that they are treated fairly and compensated equitably,  
          including pay for overtime hours worked.  It is due to their  
          dedicated and compassionate work that seniors are able to stay  
          in the home during their most vulnerable period in their lives.   
          Thanks to the work of domestic workers, seniors are able to live  
          in their own homes with dignity and respect. Keeping seniors out  
          of nursing homes, and in their own homes, saves the state  
          millions of dollar every year." 



          The American Civil Liberties Union (ACLU) writes in support  
          that, "since the passage of AB 241, domestic workers have  
          reported improved confidence and the ability to advocate for  
          dignified standards in their jobs.  If SB 1015 is not passed,  
          these workers will no longer have access to these much needed  
          state job protections.  The ACLU is proud to support SB 1015,  
          which recognizes the importance of domestic work and reaffirms  
          the dignity of the California families whose household economy  
          relies on this critical work." 





          The United Domestic Workers (UDW) - AFSCME Local 390 supports  
          this measure and states, "On average, domestic workers earn  
          poverty wages and are excluded from our most fundamental labor  
          protections.  In 2013, the California Domestic Workers Coalition  
          sponsored AB 241 (Ammiano) to grant domestic workers the right  











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          to daily and weekly overtime pay?  Domestic workers make so  
          little that they have come to depend on overtime pay.  It is  
          crucial that we end this injustice and make this law permanent  
          so that employers cannot pocket the money that our State's most  
          vulnerable workers deserve."





          Arguments in Opposition 


          


          The California Association for Health Services at Home (CAHSAH)  
          opposes this measure and states:

            "As early as 1986, the Industrial Welfare Commission  
            recognized a complete exemption from the overtime provisions  
            and other requirements of the Wage Orders for individuals  
            employed as personal attendants who provide in-home care.  In  
            2012, Governor Jerry Brown vetoed AB 889 which would have  
            extended overtime pay to personal attendants because he was  
            concerned about the impact the bill would have on seniors and  
            other frail Californians who depend on private home care  
            services to avoid institutionalization and to keep them safe  
            and healthy in their home.  In 2013, AB 241 was signed into  
            law requiring that caregivers receive overtime compensation  
            after nine hours in a day and/or 45 hours in a workweek but  
            this time the bill included a sunset clause of 2017 and  
            specifically required that a complete impact study be  
            conducted. 
            The Governor included a specific message in his AB 241 signing  
            statement that asked:

               What will be the economic and human impact on the disabled  
               or elderly person and their family of requiring overtime,  











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               rest and meal periods for an attendant who provides 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 and will they be less  
               flexible?"

          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 to provide care.
                 Many seniors and frail individuals are being forced out  
               of their homes into residential care facilities.

          CAHSAH goes on to state that, "Now, [this bill] is being  
          introduced to remove the sunset clause that was established  
          under AB 241.  However, the impact study that was mandated by AB  
          241 has not been released and the work continues to collect and  
          analyze all the data.  The Department of Industrial Relations  
          just notified CAHSAH that they will be conducting a final home  
          care providers study beginning in April.  The full results of  











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          the impact study need to be understood before making any changes  
          to AB 241. " 



          In addition, Disability Rights California (DRC) opposes this  
          measure.  They state that, "DRC opposed AB 241, whose sunset  
          [this bill] would lift, because of the negative consequences to  
          people with disabilities, most of whom are low-income who pay  
          privately for attendant care.  The AB 241 debate was long and  
          painful and did not resolve the issues which should unite rather  
          than divide two groups: low-income personal care workers and  
          low-income people with disabilities who employ them.  We support  
          the rights of workers to be treated fairly, and we also support  
          the rights of people with disabilities to live in their own  
          homes, work and function in their communities.  Unfortunately,  
          AB 241 lumped low-income people with disabilities, who rely on  
          their attendants for their survival and functioning, with  
          wealthy people who could do their own chores but have money  
          enough to hire somebody else to do them.  The burdens are not  
          equal; the effects of the bill are not equal.  There are people  
          with disabilities who spend half their incomes paying privately  
          for their attendants, because their gross income does not  
          qualify them for government programs.  The claim that AB 241 has  
          been a great success does not seem to be supported by any data  
          on its effect on people with disabilities." 


          


          Prior Related Legislation 


          


          SB 1344 (Stone) from 2016 proposed to add a sleep time exemption  
          from hours worked for purposes of overtime compensation for  











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          live-in employees or 24-hour shift workers.  Specifically, SB  
          1344 would have allowed 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.   
          SB 1344 failed passage in the Senate Labor and Industrial  
          Relations Committee.  

          AB 241(Ammiano) Chapter 374, Statutes of 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 889 (Ammiano) from 2012 would have required the permanent  
          adoption of regulations governing specified working conditions  
          of domestic workers, including but not limited to, overtime  
          compensation and meal and rest periods.  AB 889 was vetoed by  
          Governor Brown. The Governor's veto message stated:
            
            "Domestic workers work in the homes of ill, elderly or  
            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?  













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            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. 



            Finally, a drafting error leaves most In Home Supportive  
            Service (IHSS) workers subject to this measure - - resulting  
            in costs to the state of over $200 million per year. This  
            could require cuts in wages, reduced hours of care and other  
            reductions to those served by IHSS workers."



          REGISTERED SUPPORT / OPPOSITION:




          Support


          9 to 5 Los Angeles 


          Ability NOWBay Area


          Alameda Labor Council













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          Alliance of Californians for Community Empowerment
                                                      

          American Association of University Women


          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













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          Binational Center for the Development of Oaxacan Indigenous  
          Communities


          Black Alliance for Just Immigration


          California Alliance for Retired Americans


          California Applicants' Attorneys Association


          California Asset Building Coalition


          California Child Care Resource & Referral Network


          California Commission on Asian Pacific Islander American Affairs


          California Domestic Workers Coalition (sponsor)


          California Employment Lawyers Association


          California Environmental Justice Alliance


          California Faculty Association, San Francisco State Chapter 


          California Healthy Nail Salon Collaborative


          California Hunger Action Coalition












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          California Immigrant Policy Center


          California Immigrant Youth Justice Alliance


          California In-Home Supportive Services Consumer Alliance


          California Labor Federation, AFL-CIO


          California Latinas for Reproductive Justice


          California Nurses Association


          California Partnership


          California Rural Legal Assistance Foundation 


          California School Employees Association


          California Women's Law Center  


          California Work and Family Coalition


          Californians for a Healthy and Green Economy


          Care.com












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          Career Ladders Project


          Caring Across Generation


          Center for Popular Democracy


          Central American Resource Center/Centro de Recursos  
          Centroamericanos


          Central Coast Alliance United for a Sustainable Economy


          Central Florida Jobs with Justice


          Centro Cultural de Mexico


          Centro Laboral de Graton


          Centro Legal de la Raza


          Child Care Law Center


          Chinese for Affirmative Action


          City and County of San Francisco


          Coalition for Humane Immigrant Rights of Los Angeles











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          Community Coalition 


          Community Health for Asian Americans


          Community Housing Partnerships


          Council of Mexican Federations


          Council on American-Islamic Relations California


          Courage Campaign


          Day Labor Center Hayward, Oakland, Tri-City, Tri-Valley


          Day Worker Center in Santa Cruz County


          Day Worker Center of Mountain View


          Diawang Kabataan of Tri-city


          Dolores Street Community Services


          East Bay Alliance for a Sustainable Economy


          East Bay Organizing Committee











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          El/La Para TransLatinas


          Ella Baker Center for Human Rights


          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


          Home Green Home











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          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


          Language Access Network


          Lawyers' Committee for Civil Rights of the San Francisco Bay  
          Area


          Mexican American Legal Defense and Education Fund 


          MomsRising.org













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          Movement Generation Justice & Ecology Project


          Movement Strategy Center


          Mujeres Unidas Y Activas 


          National Council of Jewish Women


          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


          North County Immigration Task Force


          Numerous Individuals


          Oakland Rising


          Oceanic Coalition of Northern California













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          Office & Professional Employees International Union, Local 3


          Orange County Immigrant Youth United


          Parent Voices


          Pegasus


          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


          PROSPERA Co-Ops: The Business of Empowerment


          Public Counsel


          Raising California Together


          Restaurant Opportunities Centers of Los Angeles












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          Restaurant Opportunities Centers United


          Sacramento Immigration Alliance


          Sailors Union of the Pacific


          San Francisco Community College Federation of Teachers


          San Francisco Labor Council


          San Francisco Women Against Rape


          Santa Clara County Wage Theft Coalition


          Save Midtown Tenants Association 


          SEIU - United Service Workers West


          SEIU California


          Senior and Disability Action


          Services Immigrant Rights & Education Network


          Somos Familia












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          Strategic Action for Just Economy


          Supervisor Efren Carrillo, Sonoma County


          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 Opportunity Institute


          The Women's Collective/La Colectiva de Mujeres


          Tradeswomen, Inc.


          UFCW Western State Council


          UNITE HERE! 











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          United Domestic Workers of America - AFSCME LOCAL 3930


          United Educators of San Francisco


          United Farm Workers


          Vital Immigrant Defense Advocacy and Services


          Voices for Progress


          Wage Justice Center


          Western Center on Law and Poverty


          Women's Employment Rights Clinic of Golden Gate University  
          School of Law


          Women's Policy Institute, Women's Foundation of California


          WorkSafe


          Young Workers United


          PODER!













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          Opposition


          Numerous Individuals


          1-Heart Caregiver Services


          AAA T.L.C. Health Care, Inc.


          California Association for Health Services at Home  


          Care to Stay Home


          Comfort Keepers


          Disability Rights California 


          Home Instead Senior Care


          Innovative Healthcare Consultants


          Matched Caregivers


          Visiting Angels














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          Analysis Prepared by:Taylor Jackson / L. & E. / (916)  
          319-2091