BILL ANALYSIS Ó
SB 1015
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Date of Hearing: June 22, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, 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