BILL ANALYSIS Ó HR 11 Page A 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 HR 11 Page B 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 HR 11 Page C 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. HR 11 Page D 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. --------------------------- <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. HR 11 Page E 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 HR 11 Page F 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 --------------------------- <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. HR 11 Page G 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: HR 11 Page H "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