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  • Brown Vetoes Domestic Workers Bill of Rights (AB 889)

    On September 30, 2012, Governor Brown vetoed the Domestic Workers Bill of Rights (AB 889).  The governor’s veto message indicates, among other things, the bill raised too many unanswered questions about what “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 hours care.”  Governor Brown apparently felt that we should answer some of those questions before mandating a change in the law.  He seemed particularly troubled by the fact that the bill required the Department of Industrial Relations to find answers to the question and come up with regulations at the same time.

    I think the veto was a good move for now.  Let’s gather the facts and consider the impact of a law before we change it.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    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 the Law Office of Phillip J. Griego. 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 the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses 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.

  • Domestic Workers Rights Bill (AB 889) Sitting on Governor’s Desk

    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.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    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 the Law Office of Phillip J. Griego. 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 the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses 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.

    Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • New Laws Regarding California Employers and Employees

    There are several new laws and amendments currently under consideration by the Governor of California, as well as the legislature.

    The Recorder reports that three bills, AB 267, AB 325, and AB 559, are currently sitting before the Governor Brown.

    • AB 267 prohibits “choice of law” or “forum selection” clauses in employment contracts if those clauses require the use of non-California law or litigation outside of California.
    • AB 325 would allow up to 3 days bereavement leave and would prohibit discrimination against employees who take time off for the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.  A successful plaintiff could recover back wages and attorneys’ fees.
    • AB 559 would modify a rule denounced by the California Supreme Court (Chavez v. City of Los Angeles, 47 Cal.4th 970) granting courts the authority to limit attorneys’ fees awards when the case could have been brought in limited jurisdiction as opposed to unlimited jurisdiction.

    The California Chamber of Commerce and other pro-employer entities oppose these bills, and in the past have successfully defeated similar bills while Schwarzenegger was in office.

    Governor Brown has already signed into law the following bills affecting employers and employees in California:

    • AB 240 Compensation recovery actions: liquidated damages.
    • AB 587 Public works: volunteers.
    • SB 117 Public contracts: prohibitions: discrimination based on gender or sexual orientation.
    • SB 374 Gambling control: key employee licenses.
    • SB 559  Discrimination: genetic information.
    • SB 609 Public Employment Relations Board: final orders.

    Of course we can’t forget about AB 889 regarding domestic workers, which I’ve discussed before.

    If you work or do business in California, especially if you do business on any public works projects, you should familiarize yourself with any new requirements applicable to your industry.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    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 the Law Office of Phillip J. Griego. 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 the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses 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.

  • Follow Up on Current Version of AB 889 – Domestic Workers Bill of Rights

    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.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    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 the Law Office of Phillip J. Griego. 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 the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses 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.