I hope you were able to listen to the discussion this morning on KQED regarding the Domestic Workers Bill of Rights. Unfortunately I was not able to address an area of the law that gives me the greatest concern: This bill would unduly broaden the definition of employer, unnecessarily increase who will be considered an employee, and create additional burdens on homeowners and occupants with respect to non-caregiver workers. I apologize in advance for the length of this post (I usually try to keep them brief), but there is some background that I think is necessary.
Putting aside the issue of whether personal attendants/caregivers should or should not be entitled to overtime, AB889 broadens the definition of an employer. Under most wage orders, an employer is anyone who exercises control over the wages, hours or working conditions of the employee. (See Martinez v. Combs.) Court decisions have agreed that corporate officers and directors are not considered employers. AB889, however, includes corporate officers or executives who directly or indirectly through third parties exercise control over wages, hours or working conditions of employers. In essence, the bill eradicates the typical corporate shield that is a significant benefit of the corporate structure.
Let’s consider how this broad definition could impact the typical independent contractor relationship most homeowners have with non-caregivers. I’m talking about the gardener, the roofer, the pool cleaner, etc.. If you, as the homeowner, control the working conditions, then you are the employer. If you decide on the wages you will pay or what hours the person will come into your home, then you are the employer. You will not be able to hire a sole proprietor with no employees because otherwise you are arguably controlling the wages, hours and working conditions of the employee. If you hire a company with employees, then hopefully the company will control the hours and wages, but I’m not so sure about the working conditions.
Additionally, AB889 modifies the workers’ compensation laws to apply to any person who performs any work at or on your home regardless of how long they work at the home. Labor Code Section 3351 defines who is an employee for workers’ compensation purposes. Workers’ Compensation laws not only require workers’ compensation insurance coverage for all employees, but also requires employers to provide notice of certain rights under the Workers’ Compensation laws. Currently, Labor Code Section 3352(h) excludes person employed by the homeowner for less than 52 hours in the 90 calendar days preceding the date of injury from the definition of employee. AB889 deletes the 3352(h) exemption. What that means is that you, as a homeowner, will need to carry workers’ compensation insurance for any person providing services to your home, such as gardeners, construction workers, pest control servicemen, cable installers, etc. You will have to have workers’ compensation insurance for them even if they only come to your house one day for a couple of hours and even if they are covered by their own workers’ compensation insurance. You will also have to provide them notification of their workers’ compensation rights.
AB889 deletes a similar provision in Labor Code Section 226. Labor Code Section 226 requires employers to provide itemized pay stubs to all employees. The pay stubs must have specific information such as hours worked, wage rates, last four digits of the employee’s social security number, etc. Currently, there is an exemption to that rule for employees employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance or use of the dwelling. AB889 takes away that exemption. Like the Workers’ Compensation laws discussed above, that means you will have to provide a pay stub to your gardener, cable installer, home improvement contractor, etc.
Regardless of which side of the aisle you are on regarding overtime entitlements for caregivers, the other changes proposed by AB889 create a significant burden on everyone, overly broadens the definition of employer, and imposes unwieldy requirements in situations that do not need reform. I encourage you to read the bill. Talk about the issue with your friends, families and co-workers, and come to your own conclusions regarding whether this bill is the appropriate way to resolve the problems. Then, write your representative and let them know your thoughts. That’s what I’m going to do.Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 South Bay: 408-293-6341 East Bay: 925-364-4655
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