Those of you who follow my blog know that I’ve written about the domestic workers rights bill on previous occasions. An amended version of the bill has passed the senate and the assembly and is sitting on Governor Brown’s desk. I urge you to contact Governor Brown and tell him whether you support the bill or not. I, for one, do not support the bill as written and I think it can have some dire consequences if put into law.
First, I want to clarify a few points. Proponents of the bill, as well as the legislative declaration justifying the bill, incorrectly state that domestic workers are denied rights that are afforded to other workers. This is simply not true. Domestic workers, like most other workers, are entitled to minimum wage, overtime premiums, a safe and healthful work environment, a work environment free of unlawful harassment, and a myriad of statutorily granted rights. Look at Wage Order 15. Read the Fair Employment and Housing Act. Look at the OSHA statutes. All apply to domestic workers.
I also encourage you to read AB 889. The proponents and the legislative declaration make some very broad statements regarding the horrors that domestic workers endure, including verbal and sexual abuse, sexual assaults, termination without notice or severance pay, and the ability to advocate collectively for better working conditions. The legislative declaration also expresses concern over the fact that domestic workers usually work alone, behind closed doors and out of the public eye, leaving them isolated, vulnerable to abuse and exploitation. What the AB 889 proponents won’t tell you is that AB 889 does nothing about any of those issues. More importantly, it implies that other employees are entitled to notice prior to termination or severance pay. “At-will” employment has been the statutory standard in California since 1937, and hardly anyone is entitled to severance pay. I don’t like proponents or our legislature using red herrings to avoid the actual issues. It is particularly upsetting when the proposed bill doesn’t even address the evils that being used to justify the new legislation.
There is a grain of truth to the argument that some domestic workers do not get overtime. “Personal attendants” under Wage Order 15 are not entitled to overtime premiums, but they are entitled to minimum wage. If the proponents of AB 889 want personal attendants to receive overtime premiums then pass a bill that says, “Personal attendants under Wage Order 15 are not exempt from the overtime requirements of California law.” With that simple change, personal attendants would enjoy the same rights to overtime that every other domestic employee already has.
The personal attendant exemption only applies to people that spend their time dressing, feeding and supervising an elderly or disabled person. If the worker spends more than 20% of his or her time performing duties other than dressing, feeding or supervising the person, then the worker does not qualify for the exemption and is entitled to overtime.
I don’t dispute that personal attendants perform vital services and deserve a fair wage, but I question whether requiring overtime premiums for personal attendants makes the most sense. What many proponents fail to mention is the fact that personal attendants are entitled to minimum wage for all hours worked, which includes any hours that they are under the employer’s control including hours spent sleeping. So, if I work as a personal attendant 24 hours a day, regardless of how I spend those hours (e.g., sleeping, reading, talking on the phone, etc.), my employer must pay me $192.00 per day. Over the course of a year that’s over $70,000.00. Add in the fact that I get free room and board and the pay doesn’t look that bad. In fact, it is significantly above the poverty level despite what AB 889 proponents tell you.
Of course, no one should be required to work endless days without a break. But this proposed law doesn’t do anything to prevent an employer from asking an employee to work 24 hours a day, 7 days a week. In California, there are no laws that prevent my employer or any other employer from asking an employee to work 24 hours a day, 7 days a week.
The difference, according to AB 889 proponents, is that personal attendants do not get overtime. Neither do a host of other occupations. Sheep herders, camp counselors, irrigators, ski lift operators, and a host of other occupations are not entitled to overtime. In fact, the law allows you to pay a exempt manager about 1/2 what you would pay a personal attendant and never have to pay overtime premiums regardless of the number of hours you ask the employee to work.
If employers are required to pay personal attendants overtime like other domestic workers, especially without any exception for time spent sleeping, the wages will almost double ($1,344.00 per week at minimum wage versus $2,208 per week if entitled to overtime). That’s great, if the families can afford it. Unfortunately no one has been able to show me any data that indicates an elderly person living on a fixed income can afford to pay someone $315.00 per day for 24 hour care. Either a family member will need to take care of the elderly person or the elderly person will need to move into assisted living.
There is another option. The employer can start to employ 3 to 4 workers each work week and ensure no one works more than 8 hours in a day. Unfortunately, now the worker who was earning $192.00 per day is only earning $64.00 per day and no longer has housing (you’d have to rotate who gets to sleep in the same room in order to avoid the 7th consecutive day overtime requirement). If this legislation is intended to increase the wages for personal attendants, there is a significant chance that the change will have the opposite effect. The good news is there will be more opportunities and job openings as employers scramble to fill the increased demand.
My real problem with AB 889 is that the statute unnecessarily increases liability where it shouldn’t. AB 889 defines a “domestic work employer” as “any 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, employes or exercises control over the wages, hours, or working conditions of a domestic work employee.”
The first thing you’ll note is that the statute eradicates the typical protections granted by forming a corporation without the mess of actually having to prove the corporation is a sham. I think that is a bad idea. You should also note that the employer includes anyone that “directly or indirectly” exercises control over the wages, hours or working conditions even if the domestic worker already has an employer. Let me give you a real world example.
Mom is getting on in years and needs help around the house. She has a trust set up where the son is the trustee of the estate, and the courts have appointed a conservator of the person. The trustee is responsible for ensuring the bills are paid and the conservator is responsible for making sure mom’s needs are being met. The son/trustee knows he’s not qualified to find and supervise a companion, so he hires a reputable home care provider agency. The agency decides who to hire and what to pay the worker. The agency places a nice person in the home to live with mom and to make sure she doesn’t fall down the steps. Three years later, mom passes away. Two months later the son/trustee, the conservator, and the home care provider agency all get letters demanding $385,000.00 in unpaid overtime. Who is the employer?
Under AB 889, all three, and mom as well, are likely the employer. The son/trustee indirectly exercised control over the wages. The conservator directly or indirectly exercised control over the hours and working conditions. The agency, the only entity that really should be responsible, is also obviously responsible. If you hire a plumbing company to fix your plumbing, should you be responsible if the plumbing company fails to pay the actual plumber just because you told him when to show up? How about the cable installer or any enumerable other people that could conceivably be considered your employees. Under the proposed law, you would be considered the employer of anybody who comes into your home or onto your premises to perform work in or around the household.
I suspect the legislature is trying to curtail the prevalent use of “independent contractors” in the home-care industry. There are already laws in place that prohibit incorrectly classifying employees as independent contractors, many of which contain very steep penalties. Enrolling a new law that says the same thing, but in an overly broad manner that will have undesired, and hopefully unintended, consequences is not a good idea in my book. If employers are not following the laws we currently have, what makes you think a broader law will encourage compliance?
If you want personal attendants to receive overtime premiums then tell the legislature to fund the Industrial Welfare Commission so that the IWC can do its job of reviewing and revising the wage and hour laws to protect the health, safety and welfare of California’s employees. Regardless of whether you think personal attendants should receive overtime premiums, I do not support this bill and I encourage you to contact Governor Brown today and let him know your thoughts.
Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
East Bay 925-364-4655
Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.
The attorneys of Phillip J. Griego & Associates represent clients throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.
Read Full Post »