BILL ANALYSIS Ó
HR 11
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Date of Hearing: March 30, 2011
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
HR 11 (Ammiano) - As Introduced: March 7, 2011
SUBJECT : Domestic worker rights.
SUMMARY : Recognizes March 30th as International Domestic
Workers' Day. Specifically, this resolution :
1)Makes the following legislative statements:
a) The rise in domestic employment is a global phenomenon.
The International Labour Organization (ILO) estimates that
100 million persons, predominately women, labor as domestic
workers around the world. In the United States, domestic
work is among the top 20 occupations for women--1.2 million
child-care workers and 789,000 personal and home-care
aides. The aging of 78 million "baby boomers" will further
increase the demand for in-home services over the next two
decades in the United States.
b) Domestic workers play a critical role in our global
economy, working to ensure the health and prosperity of
families and freeing others to participate in the
workforce. Domestic work makes all other work possible.
c) Despite the important role of domestic workers in the
household and the overall economy, domestic work is still
not recognized as work. Domestic workers toil in obscurity
with limited legal protections, unseen and unprotected.
d) In the United States, domestic workers have historically
been exempted from most laws governing insurance for the
elderly, unemployment benefits, collective bargaining,
minimum wages, and other labor standards. Today, many
domestic workers in the United States are still excluded
from the most basic protections afforded other workers in
the labor force under state and federal law, including the
right to overtime pay, safe and healthy working conditions,
workers' compensation, and protection from discriminatory
treatment. The exclusion of domestic workers under federal
and state laws has historically reflected stereotypical
assumptions about the nature of domestic work rooted in
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racial and class prejudices. Society has viewed the
relationship between employer and "servant" as "personal,"
rather than commercial, in character, has not seen
employment within a household as "real" productive work,
and has not recognized that women work to support their
families.
e) The lack of labor protections has resulted in domestic
workers toiling under harsh working conditions, such as
long hours for low wages without benefits or job security,
severe restrictions on their personal time, and isolation.
In the worst cases, 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) March 30 is the international day of recognition for
domestic workers celebrated throughout the world,
especially in Latin America.
g) In 2000, the Legislature of the State of California
enacted Assembly Concurrent Resolution 141 which declared
March 30 as Domestic Worker Appreciation Day in recognition
of all domestic workers for their hard work and dedication,
their contribution to the stability and well-being of the
Californian family household, and their often overlooked
contributions to California's economy.
h) Domestic workers across the state of California have
joined together to form the California Domestic Workers'
Coalition to achieve social and economic justice and secure
much-needed protections for domestic workers under
California's labor laws.
i) The Legislature of New York passed the Domestic Workers'
Bill of Rights in August 2010 to guarantee basic work
standards and protections for nannies, caregivers, and
housekeepers.
j) Domestic Workers United and a broad coalition helped
pass that historic bill.
aa) The National Domestic Workers Alliance is organizing
domestic workers across the United States to end the
exclusion of domestic workers from federal labor
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protections, and the International Domestic Workers'
Network, made up of domestic worker organizations from
around the world, has formed to fight the exploitation and
abuse of domestic workers by creating and advancing
international standards in the industry.
bb) In June 2010, the International Labour Conference
adopted a resolution calling for the drafting of an
international convention and supplementary recommendation
to extend labor standards and social protection to the
world's domestic workers.
cc) The 2011 International Labour Conference is expected to
adopt the ILO Convention and accompanying Recommendation on
Domestic Work, setting standards for decent work for
domestic workers.
2)Resolves the following:
a) That the Legislature of the State of California
recognizes March 30 as International Domestic Workers' Day
in this state to celebrate the contribution of domestic
workers to California and to support the international
movement to recognize and respect the work of domestic
workers.
b) That coverage of domestic workers under state and
federal labor law should be an expression of respect for
their dignity and equality and the importance of the work
they perform, and a rejection of antiquated and
long-discredited stereotypes about domestic work.
COMMENTS : This resolution recognizes March 30th as
International Domestic Workers' Day.
General Background on Domestic Workers
"Domestic workers" or "household workers" are generally
comprised of housekeepers, nannies and caregivers of children
and others who work in private households to care for the
health, safety and well-being of those under their care.
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A recent study generally summarizes the general status of
domestic workers as follows:
"ÝDomestic] workers work in the private homes of their
employers, performing tasks such as in-home child, patient,
and elder care, housework, and cooking. They are primarily
female immigrants; some live in the home of their employer
working around the clock, while others work in various
households where the work is temporary and sporadic. Many
are 'unaffiliated' workers, meaning they have no connection
to a hiring or temporary agency. The independent, private,
often isolated nature of domestic labor means that
household workers often lack information about their rights
or knowledge of the laws of this country and are frequently
exploited by employers. Those who are undocumented live in
constant fear of being deported. While supporting their
employers' homes and families, household workers frequently
find themselves working in substandard and often
exploitative conditions, earning poverty wages too low to
support their own families, and lacking access to basic
health care. Their vulnerable situation subsidizes the
productivity and affluence of the U.S. economy and yet this
occupation is little understood and marginalized by the
larger society and policymakers."<1>
Advocates contend that domestic workers often labor under harsh
conditions, work long hours for low wages without benefits or
job security, and face termination without notice or severance
pay leaving many suddenly without income. In the worst cases
domestic workers are verbally and physically abused or sexually
assaulted, and stripped of their privacy and dignity.
Treatment Under Federal and State Labor Laws
In general, domestic workers are largely excluded from some of
the more basic protections afforded to other workers under state
and federal law, including the rights to overtime wages, safe
and healthy working conditions, workers' compensation,
employment discrimination and the right to engage in collective
bargaining.
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<1> "Behind Closed Doors: Working Conditions of California's
Household Workers." Mujeres Unidas y Activas, Day Labor Program
Women's Collective of La Raza Centro Legal, Data Center (March
2007), p. 2.
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One useful analysis includes the following overview of the
treatment of domestic workers uder California law:
"In California, 'all persons employed in household
occupations, whether paid on a time, piece rate,
commission, or other basis' are entitled to be paid the
state minimum wage. Live-in domestic workers cannot be
charged for food or housing without a voluntary, written
agreement. Like its federal counterpart, California wage
and hour laws exclude personal attendants. However,
personal attendants, whether live-in or not, are entitled
to the California minimum wage if they spend more than
twenty percent of their time doing other housework.
Non-live-in domestic workers are entitled to overtime pay
under California law under the same conditions as under
federal law; however, in California such workers are also
entitled to rest periods. Ten minute rest periods and a
thirty minute meal period are considered on-duty and
counted as time worked, unless the employee is relieved of
all duty during the meal period.
Live-in domestic workers are entitled to overtime only if
they work more than nine hours in a workday or if they work
on the sixth or seventh workday. These workers must be
given at least 12 consecutive off-duty hours on any
workday. Work during off duty time is compensable as
overtime. Personal attendants are not entitled to meal
breaks or rest breaks.
All domestic workers in California are entitled to be free
from sexual harassment.
Many domestic workers are entitled to workers' compensation
benefits if they are injured on the job. To qualify for
benefits under California's Worker Compensation Law,
domestic workers must work more than 52 hours during the 90
days prior to injury and must have earned $100 or more
during the same 90 days.
Though rights and protections are relatively broad in
California, domestic workers still do not enjoy the full
complement of employment protections provided to most of
the state's workers. Domestic workers may suffer
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discrimination, since California's Fair Employment and
Housing Act only prohibits employers with five or more
employees from discrimination on the basis of race, sex,
religion, national origin, pregnancy, age, disability,
marital status, sexual orientation, gender identity, or on
the basis of an English only policy. California
occupational safety and health law excludes 'household
domestic service.' Domestic workers who provide 'domestic
service in a private home' are excluded from obtaining
unemployment insurance benefits unless the worker was paid
$1000 or more in any calendar quarter in the calendar year
or the preceding year. Undocumented immigrant workers are
not eligible to collect unemployment insurance in
California.
California employment and labor law provides most domestic
workers with minimum wages and maximum hours, workers'
compensation for injuries on the job, and protection from sexual
harassment. However, domestic workers in California are left
without many of the basic legal protections afforded to other
workers in this state."<2>
RECENT OVERSIGHT HEARING
On June 9, 2010, this Committee convened an oversight hearing
entitled, "Behind Closed Doors: Working Conditions of California
Domestic Workers." That hearing featured testimony by domestic
workers, academics, lawyers, worker advocates, public health
officials and others. The hearing explored in detail the
working conditions of domestic workers in California and the
status of state and federal laws that apply (or do not apply) to
domestic workers.
ARGUMENTS IN SUPPORT :
The author states that, according to estimates from the
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<2> Left Out: Assessing the Rights of Migrant Domestic Workers
in the United States, Seeking Alternatives." Human Rights
Center, UC Berkeley International Human Rights Clinic, Boalt
Hall School of Law (November 2003), pp. 5-7.
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International Labour Organization, there
are 100 million persons, predominately women, who labor as
domestic workers around the
world. In the United States, domestic work is among the top 20
occupations held by women,
with around 200,000 domestic workers in California.
The author states that domestic workers play a critical role in
our global economy, working to
ensure the health and prosperity of families and freeing others
to participate in the workforce. Despite the important role that
domestic workers have in the household and economy, domestic
workers have historically been, and still are economically and
socially marginalized. Domestic work is not seen as work, and
often times they toil in obscurity with limited legal
protections, working in isolation, while most of society fails
to even recognize their significant contributions to society.
The author argues that this resolution seeks to recognize and
celebrate the work of domestic workers, their contributions to
society, and the continued efforts to end the exploitation and
abuse domestic workers face in society. It resolves that the
coverage of domestic workers under state and federal law should
be an expression of respect for their work and equality, and
rejects the long discredited stereotypes about domestic work.
RELATED AND PRIOR LEGISLATION
AB 889 (Ammiano) of 2011 would extend many of the labor and
employment protections of California law to domestic workers.
AB 889 is currently pending before the Assembly Committee on
Labor and Employment.
ACR 163 (V. Manuel Perez) of 2010 encouraged greater protections
in federal and state law for domestic workers.
AB 2536 (Montanez) of 2006 was the most ambitious legislation
aimed at these issues in recent history. As introduced, AB 2536
would have eliminated the overtime exemption under California
law for most "personal attendants." There was significant
opposition, and the bill was subsequently narrowed to generally
apply only to nannies.
AB 2536 was vetoed by Governor Schwarzenegger, who stated the
following in his veto message:
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"This bill would require overtime payment for personal
attendants who are nannies. The existing overtime
exemption was intended to keep these jobs above ground and
to allow those in need of such services to find assistance
at a price they can afford. Removing this exemption would
dramatically increase the costs of these attendants and
potentially drive employment underground.
I am also concerned that this bill creates new liquidated
damages penalties against employers of all household
workers, not merely nannies. In short, this bill subjects
seniors and the severely disabled who hire household
workers to a new cause for civil litigation. Given the
increase in frivolous labor law litigation in recent years,
I cannot support subjecting seniors and the disabled to
additional liability."
ACR 141 (Cedillo) of 2000 which declared March 30 as Domestic
Worker Appreciation Day in recognition of all domestic workers
for their hard work and dedication, their contribution to the
stability and well-being of the Californian family household,
and their often overlooked contributions to California's
economy.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091