BILL ANALYSIS                                                                                                                                                                                                    Ó




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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.
          ---------------------------
          <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 
          ---------------------------
          <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