Bill Text: CA AB241 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Domestic work employees: labor standards.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Passed) 2013-09-26 - Chaptered by Secretary of State - Chapter 374, Statutes of 2013. [AB241 Detail]
Download: California-2013-AB241-Amended.html
Bill Title: Domestic work employees: labor standards.
Spectrum: Partisan Bill (Democrat 7-0)
Status: (Passed) 2013-09-26 - Chaptered by Secretary of State - Chapter 374, Statutes of 2013. [AB241 Detail]
Download: California-2013-AB241-Amended.html
BILL NUMBER: AB 241 AMENDED
BILL TEXT
AMENDED IN SENATE SEPTEMBER 6, 2013
AMENDED IN SENATE SEPTEMBER 3, 2013
AMENDED IN SENATE JULY 1, 2013
AMENDED IN ASSEMBLY MAY 24, 2013
AMENDED IN ASSEMBLY MARCH 19, 2013
INTRODUCED BY Assembly Member Ammiano
( Coauthors: Assembly Members
Fong and Weber )
(Coauthors: Senators Block, De León, Hueso, and Lara)
FEBRUARY 6, 2013
An act to add Part 4.5 (commencing with Section 1450) to Division
2 of , and to repeal Section 1454 of, the Labor Code,
relating to domestic work employees.
LEGISLATIVE COUNSEL'S DIGEST
AB 241, as amended, Ammiano. Domestic work employees: labor
standards.
(1) Existing law regulates the wages, hours, and working
conditions of any man, woman, and minor employed in any occupation,
trade, or industry, whether compensation is measured by time, piece,
or otherwise, except as specified. Existing law creates the
Industrial Welfare Commission and authorizes it to adopt rules,
regulations, and orders to ensure that employers comply with those
provisions. Wage Order No. 15-2001 of the commission regulates wages,
hours, and working conditions for household occupations. Existing
law makes violations of certain of these provisions a misdemeanor.
This bill would enact the Domestic Worker Bill of Rights to
specially regulate the wages, hours, and working conditions
of certain domestic work , until January 1,
2017, regulate the hours of work of certain domestic work employees
and provide an overtime compensation rate for those employees.
The bill would define 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, which would include childcare
providers, caregivers of people with disabilities, sick,
convalescing, or elderly persons, house cleaners, housekeepers,
maids, and other household occupations. The bill would
provide an overtime compensation rate for those domestic work
employees, with specified exceptions. The bill would prevail if a
provision of the household occupations wage order or any other
provision of law affords less protection to a domestic work employee,
and that wage order or provision of law would prevail if the wage
order or any other provision of law affords more protection to a
domestic work employee. The bill would prescribe standards for
determining whether time spent by a personal attendant who is a
domestic work employee, when traveling out of town accompanying a
domestic work employer who is a person with a disability, constitutes
hours worked. The bill would further establish standards for
sleeping periods, including accommodations for a domestic work
employee who is required to sleep in the private household of the
employer, and would apply provisions of the household occupations
wage order regarding meal and rest breaks to personal attendants who
are domestic work employees. The bill would require the Division of
Labor Standards Enforcement to enforce these provisions. The bill
would also provide a domestic work employee a private right of action
to enforce these provisions. The bill would, until
January 1, 2017, require the Governor to convene a committee to study
and report to the Governor on the effects of this act. By
expanding the definition of a crime, this bill would impose a
state-mandated local program.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares
all of the following:
(a) As recognized by the State of California in Resolution Chapter
119 of the Statutes of 2010, it is the policy of the state to
encourage and protect the rights of domestic work employees.
(b) California's domestic workers, which include 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.
(c) 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. The labor
of domestic workers is central to the ongoing prosperity of the state
but, despite the value of their work, domestic workers have not
received the same protection under state laws as workers in other
industries. Although domestic workers labor to support families and
children of their own, and often are primary income earners, many
earn low wages and live below the poverty line.
(d) Because domestic workers care for the most important elements
of their employers' lives, their families and homes, it is in the
interest of employees, employers, and the people of the State of
California to ensure that the rights of domestic workers are
respected, protected, and enforced.
(e) The vast majority of domestic workers are women of color and
immigrants who are particularly vulnerable to unlawful employment
practices. Domestic workers usually work alone, behind closed doors,
and out of the public eye, leaving them isolated, vulnerable to abuse
and exploitation by some employers, and unable to advocate
collectively for better working conditions. Many domestic workers
labor under harsh conditions and work long hours for low wages
without any benefits. For those who are live-in employees, when
terminated, they lose not only their jobs but their homes. This bill
recognizes that many personal attendants have positive working
relationships with their employers. However, it must also be
recognized that there are other situations where 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.
(f) Many domestic workers are still excluded from the most basic
protections afforded to the rest of the labor force under state and
federal law, including the rights to fair wages, safe and healthy
working conditions, and protection from discriminatory and abusive
treatment. The treatment of domestic 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 "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.
(g) Recognizing that people with disabilities often need personal
attendants in order to be active participants in work, community,
social, and cultural life, this bill creates certain modifications to
the definition of compensable hours worked to accommodate situations
when out-of-town travel with a personal attendant is necessary. The
bill further modifies the existing definition of compensable hours
worked in Wage Order No. 15-2001 of the Industrial Welfare Commission
to allow for an unpaid sleep period of up to eight hours for
domestic work employees who are live-in employees or who are required
to be on duty for 24 consecutive hours or more, under specified
circumstances. Domestic work employees who are personal attendants,
who have long been denied the right to take meal and rest breaks,
will be afforded the protection of Sections 11 and 12 of Wage Order
No. 15-2001, which includes a provision for on-duty meals when the
nature of the work prevents an employee from being relieved of all
duty.
(h) Given the limited legal protections historically provided to
domestic workers, and bearing in mind the unique conditions and
demands of this private, home-based industry, the Legislature, as an
exercise of the police power of the State of California for the
protection of the public welfare, prosperity, health, safety, and
peace of its people, further 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 equality, respect, and dignity.
SEC. 2. SECTION 1. Part 4.5
(commencing with Section 1450) is added to Division 2 of the Labor
Code, to read:
PART 4.5. Domestic Work Employees
CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS
1450. This part shall be known and may be cited as the Domestic
Worker Bill of Rights.
1451. As used in this part, the following definitions apply:
(a) (1) "Domestic work" means services related to the care of
persons in private households or maintenance of private households or
their premises. Domestic work occupations include childcare
providers, caregivers of people with disabilities, sick,
convalescing, or elderly persons, house cleaners, housekeepers,
maids, and other household occupations.
(2) "Domestic work" does not include care of persons in facilities
providing board or lodging in addition to medical, nursing,
convalescent, aged, or child care, including, but not limited to,
residential care facilities for the elderly.
(b) (1) "Domestic work employee" means an individual who performs
domestic work and includes live-in domestic work employees and
personal attendants.
(2) "Domestic work employee" does not include any of the
following:
(A) Any person who performs services through the In-Home
Supportive Services program under Article 7 (commencing with Section
12300) of Chapter 3 of Part 3 of Division 9 of, and
or Sections 14132.95, 14132.952, and 14132.956
of, the Welfare and Institutions Code.
(B) Any person who is the parent, grandparent, spouse, sibling,
child, or legally adopted child of the domestic work employer.
(C) Any person under 18 years of age who is employed as a
babysitter for a minor child of the domestic work employer in the
employer's home.
(D) Any person employed as a casual babysitter for a minor child
in the domestic employer's home. A casual babysitter is a person
whose employment is irregular and or
intermittent and who does not work more than an average of
six hours per week in any given month caring for the same minor child
or children and is not performed by an individual
whose vocation is babysitting . If a person who performs
babysitting services on an irregular and intermittent basis does a
significant amount of work other than supervising, feeding, and
dressing a child, this exemption shall not apply and the person shall
be considered a domestic work employee. A person who is a casual
babysitter who is over 18 years of age retains the right to payment
of minimum wage for all hours worked, pursuant to Wage Order No.
15-2001 of the Industrial Welfare Commission.
(E) Any person employed by a licensed health facility, as defined
in Section 1250 of the Health and Safety Code.
(F) Any person who is employed pursuant to a voucher issued
through a regional center or who is employed by, or contracts with,
an organization vendored or contracted through a regional center or
the State Department of Developmental Services pursuant to the
Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500) of the Welfare and Institutions Code)
or the California Early Intervention Services Act (Title 14
(commencing with Section 95000) of the Government Code) to provide
services and support for persons with developmental disabilities, as
defined in Section 4512 of the Welfare and Institutions Code, when
any funding for those services is provided through the State
Department of Developmental Services.
(G) Any person who provides child care and who, pursuant to
subdivision (d) or (f) of Section 1596.792 of the Health and Safety
Code, is exempt from the licensing requirements of Chapters 3.4
(commencing with Section 1596.70), 3.5 (commencing with Section
1596.90), and 3.6 (commencing with Section 1597.30) of Division 2 of
the Health and Safety Code, if the parent or guardian of the child to
whom child care is provided receives child care and development
services pursuant to any program authorized under the Child Care and
Development Services Act (Chapter 2 (commencing with Section 8200) of
Part 6 of Division 1 of Title 1 of the Education Code) or the
California Work Opportunity and Responsibility to Kids Act (Chapter 2
(commencing with Section 11200) of Part 3 of Division 9 of the
Welfare and Institutions Code).
(c) (1) "Domestic work employer" means a person, including
corporate officers or executives, who directly or indirectly, or
through an agent or any other person, including through the services
of a third-party employer, temporary service, or staffing agency or
similar entity, employs or exercises control over the wages, hours,
or working conditions of a domestic work employee.
(2) "Domestic work employer" does not include any of the
following:
(A) The State of California or an individual who receives
Any person or entity that employs or exercises
control over the wages, hours, or working conditions of an individual
who performs domestic work services through the In-Home
Supportive Services program under Article 7 (commencing with Section
12300) of Chapter 3 of Part 3 of Division 9 of, and
or Sections 14132.95, 14132.952, and 14132.956
of, the Welfare and Institutions Code or who is eligible for that
program based on his or her income .
(B) An employment agency that complies with Section 1812.5095 of
the Civil Code and that operates solely to procure, offer, refer,
provide, or attempt to provide work to domestic workers if the
relationship between the employment agency and the domestic workers
for whom the agency procures, offers, refers, provides, or attempts
to provide domestic work is characterized by all of the factors
listed in subdivision (b) of Section 1812.5095 of the Civil Code and
Section 687.2 of the Unemployment Insurance Code.
(C) A licensed health facility, as defined in Section 1250 of the
Health and Safety Code.
(d) "Emergency" means an unpredictable or unavoidable occurrence
of a serious nature that occurs unexpectedly requiring immediate
action.
(e) "Hours worked" means the time during which a domestic work
employee is subject to the control of a domestic work employer and
includes all time the domestic work employee is suffered or permitted
to work, whether or not required to do so.
(f) "Live-in domestic work employee" means an employee who resides
in the domestic work employer's household at least five days per
week and for whom the employer makes sleep accommodations available
in compliance with Section 1457.
(g)
(d) "Personal attendant" 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 a person who by reason of advanced age,
physical disability, or mental deficiency needs supervision. The
status of personal attendant shall apply when no significant amount
of work other than the foregoing is required. For purposes of this
subdivision, "no significant amount of work" means work other than
the foregoing did not exceed 20 percent of the total weekly hours
worked.
1452. The Division of Labor Standards Enforcement shall enforce
this part.
1453. (a) Any domestic work employee aggrieved by a violation of
this part may bring an administrative action pursuant to Section 98
or may bring a civil action in a court of competent jurisdiction
against the domestic work employer violating this part.
(b) A domestic work employee who brings an action pursuant to this
section and prevails shall be entitled to any legal or equitable
relief permitted by law as may be appropriate to remedy the
violation. A domestic work employee bringing a civil action pursuant
to this section shall also be entitled to an award of reasonable
attorney's fees and costs, including expert witness fees.
(c) The rights and remedies specified in this part are cumulative
and nonexclusive and are in addition to any other rights or remedies
afforded by contract or under other provisions of law. If a provision
of Wage Order No. 15-2001 of the Industrial Welfare Commission or
any other provision of law affords less protection to a domestic work
employee, this part shall prevail. If a provision of Wage Order No.
15-2001 of the Industrial Welfare Commission or any other provision
of law affords more protection to a domestic work employee, the wage
order or provision of law shall prevail.
(d) Notwithstanding any provision of this code or Section 340 of
the Code of Civil Procedure, to commence an action for a violation of
this part a domestic work employee shall file an administrative or
civil complaint within three years of the violation.
1452. The Governor shall convene a committee composed of personal
attendants or their representatives and the employers of personal
attendants or their representatives. The committee shall study and
report to the Governor on the effects this part has on personal
attendants and their employers.
1453. This part shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
CHAPTER 2. DOMESTIC WORK EMPLOYEE RIGHTS
1454. (a) A domestic work employee shall be compensated pursuant
to Section 510 for all hours worked, except as provided in
subdivision (b) or in Section 1455 or 1456.
(b) A domestic work employee who is a personal attendant shall be
compensated as follows:
(1) Hours in excess of nine (9) hours in a day shall be
compensated at one and one-half (1 1/2) times the employee's regular
rate of pay.
(2) Hours in excess of sixteen (16) hours in a day shall be
compensated at two (2) times the employee's regular rate of pay.
1455. (a) A domestic work employee who is a live-in employee or
is required to be on duty for 24 consecutive hours or more shall have
a minimum of eight consecutive hours for uninterrupted sleep, except
in an emergency.
(b) If a domestic work employee is a live-in employee or is
required to be on duty for 24 consecutive hours or more, the domestic
work employer and the domestic work employee may agree in writing to
exclude from hours worked a bona fide regularly scheduled sleeping
period of not more than eight hours for uninterrupted sleep from
hours worked, provided that the employee has eight hours free of duty
and available for continuous, uninterrupted sleep and the domestic
work employer otherwise complies with this section and Section 1457.
If the sleeping period is interrupted by an emergency, only time
spent working during the emergency constitutes hours worked. Absent a
written agreement, the eight hours available for sleep shall
constitute hours worked.
1456. If a domestic work employer who is a person with a
disability needs to be accompanied by a personal attendant who is a
domestic work employee when traveling out of town, all time spent
accompanying the employer in transit, and all time attending to or
under the control of the employer constitutes hours worked. Periods
during which the personal attendant is completely relieved of duty,
is not required to be at the same location as the employer, and that
are long enough to enable the attendant to use the time effectively
for his or her own purposes do not constitute hours worked. The
employer and the employee may agree to exclude from hours worked a
bona fide sleeping period of not more than eight hours, provided that
there is a written agreement and the employee has eight hours free
of duty and available for continuous, uninterrupted sleep.
1457. Any domestic work employee who is required to sleep in the
private household of his or her employer shall be provided sleeping
accommodations that are adequate, decent, and sanitary according to
usual customary standards. A domestic work employee shall be provided
a room separate from any household resident and shall not be
required to share a bed.
1458. Sections 11 and 12 of Wage Order No. 15-2001 of the
Industrial Welfare Commission shall apply to a personal attendant who
is a domestic work employee.
1460. A domestic work employer shall permit a domestic work
employee who works five hours or more a day to choose the food he or
she eats and to prepare his or her own meals. A domestic work
employer shall permit a domestic work employee to use the job site's
kitchen facilities and kitchen appliances without charge or deduction
from pay. If a domestic work employee is informed that a person in
the household has bona fide health issues related to food, including,
but not limited to, food allergies, or has religious or dietary
restrictions that make presence of some foods unacceptable, the
employee shall not eat or prepare that food in the household.
1454. A domestic work employee who is a personal attendant shall
not be employed more than nine hours in any workday or more than 45
hours in any workweek unless the employee receives one and one-half
times the employee's regular rate of pay for all hours worked over
nine hours in any workday and for all hours worked more than 45 hours
in the workweek.
SEC. 3. SEC. 2. No reimbursement is
required by this act pursuant to Section 6 of Article XIII B of the
California Constitution because the only costs that may be incurred
by a local agency or school district will be incurred because this
act creates a new crime or infraction, eliminates a crime or
infraction, or changes the penalty for a crime or infraction, within
the meaning of Section 17556 of the Government Code, or changes the
definition of a crime within the meaning of Section 6 of Article XIII
B of the California Constitution.
