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 NUMBER: AB 241	AMENDED
	BILL TEXT

	AMENDED IN SENATE  JULY 1, 2013
	AMENDED IN ASSEMBLY  MAY 24, 2013
	AMENDED IN ASSEMBLY  MARCH 19, 2013

INTRODUCED BY   Assembly Member Ammiano

                        FEBRUARY 6, 2013

   An act to add Part 4.5 (commencing with Section 1450) to Division
2 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  employees, as
defined, with specified exceptions   employees  .
The bill would define  various terms for the purposes of the act,
including defining  domestic work  as   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 
expressly apply Wage Order No. 15-2001 of the Industrial Welfare
Commission, with specified exceptions, to a domestic work employee,
except that the new domestic work provisions established by this bill
will prevail over provisions that afford less protection 
 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  travel 
time spent by a personal  attendant, as defined, 
 attendant who is a domestic work employee, when traveling out of
town  accompanying a domestic work employer  are to be
considered   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  a
  the  private household  of the employer,
 and would apply provisions  of the household occupations
wage order  regarding meal and rest  breaks, as
specified,   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. 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  includes
  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  and   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
 personal attendants   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.
 Personal   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  Minimum  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.  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 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 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. 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)
 and   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 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 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) "Personal attendant" means any person employed by a private
 party   householder  or  employed
 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,
  deficiency  needs supervision.  A person
is a   The status of  personal attendant 
only if   shall apply when  no significant amount
of work other than the foregoing is required. For purposes of this
subdivision,  no   "no  significant amount
of  work   work   "  means
 that the  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.
      CHAPTER 2.  DOMESTIC WORK EMPLOYEE RIGHTS


   1454.  A domestic work employee shall be compensated pursuant to
Section 510  for all hours worked  , except as provided in
Section 1455 or 1456.
   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.  Any time worked during an emergency
interruption constitutes hours worked. 
   (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 carrying out, directives   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  for full-time occupancy  that are adequate,
decent, and sanitary according to usual customary standards. 
These   A  domestic work  employees
  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  which   that  make presence
of some foods unacceptable, the employee shall not eat or prepare
that food in the household.
  SEC. 3.  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.