BILL ANALYSIS                                                                                                                                                                                                    Ó





          SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
                             Senator Tony Mendoza, Chair
                                2015 - 2016  Regular 

          Bill No:               SB 1344      Hearing Date:    April 13,  
          2016
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          |Author:    |Stone                                                |
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          |Version:   |February 19, 2016                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Brandon Seto                                         |
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                          Subject:  Domestic work employees


          KEY ISSUE
          
          Should the Legislature allow certain domestic work employees,  
          through agreement with their employers, to deduct a scheduled  
          sleeping period from their pay? 
          
          
          ANALYSIS
          
           Existing law 
           
                  Uses regulations created by the Industrial Welfare  
               Commission (IWC) to determine the wages, hours, and  
               conditions of labor and employment in the various  
               occupations, trades, and industries in California  (Labor  
               Code §1173).

                 Defines "Domestic work" as services related to the care  
               of persons in private households or maintenance of private  
               households or their premises. This includes childcare  
               providers, caregivers of people with disabilities, sick,  
               convalescing, or elderly persons, house cleaners,  
               housekeepers, maids, and other household occupations (Labor  








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               Code §1451).

                 Defines a "Domestic work employee" as an individual who  
               performs domestic work including live-in domestic work  
               employees and personal attendants (Labor Code §1451).

                 Requires wages to be paid for "hours worked" defined in  
               IWC Wage Order No. 15 for household occupations, including  
               domestic workers, as the time during which an employee is  
               subject to the control of an employer, and all the time the  
               employee is suffered or permitted to work, whether or not  
               required to do so (IWC Wage Order No. 15, §2[H]). 

           Existing federal law
                
                 Permits under the federal Fair Labor Standards Act  
               (FLSA), that an employer and employee may agree to deduct a  
               bona fide regularly-scheduled sleeping period of not more  
               than 8 hours from hours worked, provided adequate sleeping  
               facilities are furnished by the employer and the employee  
               can usually enjoy an uninterrupted night's sleep (Title 29,  
               Part 785 of the Code of Federal Regulations, §785.22 [a]).

                 Requires that if the sleeping period is interrupted by a  
               call to duty, the interruption must be counted as hours  
               worked. If interruptions prevent the employee from getting  
               a reasonable night's sleep, which is considered to be five  
               uninterrupted hours, the entire period must be counted.  
               (Title 29, Part 785 of the Code of Federal Regulations,  
               §785.22 [b]).

           
          This Bill  

                 Allows live-in domestic work employees or those on duty  
               for 24 or more consecutive hours to enter into a written  
               agreement with their employers to exclude a  
               regularly-scheduled sleeping period from hours worked, and  
               thus from employee pay. 

                 Lays down the following terms regarding the agreement: 
                  1)        The scheduled sleeping period should not be  
                    more than eight hours of uninterrupted sleep if the  
                    employee has eight hours free of duty and available  
                    for continuous, uninterrupted sleep.







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                  2)        If the sleeping period is interrupted by an  
                    emergency, only time spent working during the  
                    emergency shall constitute hours worked.


          COMMENTS
          
          1.  Need for this bill?

            A recent California Supreme Court ruling in the case of  
            Mendiola v. CPS Security Solutions, Inc., S212704 (2015)   
            denied federal sleep time deductions for employees that fall  
            under Wage Order No. 4 which shares similarities with Wage  
            Order No. 15.  The court determined that the federal sleep  
            time deduction was not valid in this case because it is not  
            specifically cited in the wage order itself.  The ruling in  
            the Mendiola case has created great uncertainty for home care  
            agencies with employees who fall under Wage Order No. 15,  
            which like Wage Order 4 does not cite the federal sleep time  
            deduction. 

            The author states that this bill is needed to fix the  
            uncertainty created by the decision in the Mendiola v. CPS  
            Security Solutions, Inc. case to ensure that those providing  
            care under Wage Order No. 15 are able to utilize a sleep time  
            exemption similar to the one allowed in the federal Fair Labor  
            Standards Act.   

          2.    Background on the Mendiola v. CPS Security Solutions, Inc.  
            Case

            This case came about when security guards employed by CPS  
            Security Solutions, Inc. filed a class-action lawsuit alleging  
            that the 24-hour shifts and on-call time required by the  
            company constituted "hours worked" under Wage Order No. 4.  
            During these shifts the guards were required to reside in  
            company trailers on their job sites.  The California Supreme  
            Court examined whether the guards were entitled to  
            compensation for these on-call hours and if sleep time could  
            be excluded from their hours worked.

            These guards worked a weekday shift that consisted of patrol  
            for 8 hours, followed by 8 hours of on-call time, and finally  
            8 hours off-duty. On weekends they patrolled for 16 hours and  







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            then were on-call for 8 hours. At the heart of this matter,  
            was the issue of employer control as part of the "hours  
            worked" definition specified in Wage Order No. 4 for CPS's  
            workers, and also specified in Wage Order No. 15 as the time  
            during which an employee is subject to the control of an  
            employer. 

            The issue of employer control in defining "hours worked"  
            revolves around the possibility that although an employee may  
            not be working at a given time in a shift, they are still  
            subject to regulation, restriction, and engagement by their  
            employer.  This means that they often must abide by certain  
            standards, including requirements about their physical  
            location at their place of employment even if they are not  
            actually on-duty.  Also, the fact that employees might be  
            called to work even if they are on-site, but off-duty creates  
            another possible type of employer control.
            
            In the Mendiola case, nearly all of these aspects of employer  
            control occurred.  CPS required its on-call guards to reside  
            in a company trailer and imposed numerous restrictions on a  
            guard's activities and movements throughout their entire  
            24-hour shifts.  CPS also paid guards an hourly rate for their  
            time spent on patrol but not for on-call or sleep time unless  
            the guard was engaged to work because of something like a  
            disturbance that required their attention or investigation. 

            Because of these many restrictions, and the fact that the  
            guards spent their on-call time primarily for the benefit of  
            the company by remaining on-site as a deterrent, the court  
            determined that all time that the guards spent on-call should  
            be compensated by CPS.  This is due to the fact that the  
            employers exercised control over these employees during these  
            times, which qualifies as "hours worked" under Wage Order No.  
            4. 

            The court also ruled that CPS could not utilize the federal  
            FLSA sleep time exemption, even though the employees worked a  
            24-hour shift, because Wage Order No. 4 does not expressly  
            authorize it. Therefore, CPS had to pay its guards for time  
            designated for sleep.     


          3.    This Bill's Relationship with Federal Law
            







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            Wage Order No. 15, which covers domestic workers, is very  
            similar to Wage Order No. 4 regarding the issues in question  
            in the Mendiola case.  Wage Order No. 15 includes the  
            definition of "hours worked" that includes times when an  
            employee is under an employer's control. Neither wage order  
            specifies a sleep time exemption. The author would like to  
            include a sleep time exemption for domestic workers based on  
            the one allowed under federal law. 

            However the author's language in the bill differs from federal  
            standards regarding sleep time exemptions:
                    1)          Title 29, Part 785 of the Code of Federal  
                      Regulations, §785.22 (a) permits an  
                      employer-employee agreement to exclude sleep time  
                      provided adequate sleeping facilities are furnished  
                      by the employer and the employee can usually enjoy  
                      an uninterrupted night's sleep. This condition is  
                      not specified in this bill. 

                    2)          Although the bill states that under these  
                      agreements if sleep is interrupted by an emergency,  
                      only time spent working during an emergency can be  
                      compensated, Title 29, Part 785 of the Code of  
                      Federal Regulations, §785.22 (b) states that if the  
                      sleep period is interrupted to such an extent that  
                      the employee cannot get a reasonable night's sleep,  
                      the entire period must be counted. 

                    3)          This bill does not take these conditions  
                      or possible employer control into consideration. An  
                      employee party to an agreement described in the bill  
                      has no guarantees for any minimum amount of required  
                      sleep time.  The bill states that an employee must  
                      have eight hours available to sleep, but not does  
                      ensure that an employee will sleep for any set  
                      portion of that time or be compensated fully for  
                      possible interrupted sleep.  

                         o                In this scenario, an employee  
                           could potentially be woken-up to attend to an  
                           emergency multiple times during their scheduled  
                           sleep period. Even if those interruptions  
                           lasted for only a brief time, the employee may  
                           not have gotten a reasonable night's sleep or  
                           received adequate compensation.







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          4.  Proponent Arguments  :
            
            Proponents believe that this bill permits both home care  
            agencies and their aides to provide affordable 24-hour live-in  
            care for seniors and other frail Californians. Seniors depend  
            on private home care services to stay healthy in their own  
            homes and to avoid institutionalization. Their specific and  
            unique needs require flexibility in how a home care provider  
            can best provide that care. This has been accomplished through  
            exemptions in labor law, which keeps the cost of care  
            affordable.  SB 1344 would fix the uncertainty created by the  
            Mendiola case and would ensure that those who provide care  
            under Wage Order No. 15 are able to continue using the sleep  
            time deductions specified under the federal Fair Labor  
            Standards Act.


          5.  Opponent Arguments  :

            Opponents argue that many domestic workers are routinely woken  
            throughout the night and expected to be alert and responsive  
            to their employer's needs around-the-clock. Live-in workers  
            often do not get enough sleep, which increases their  
            susceptibility to illness and injury, while harming their  
            ability to give optimal support to their employers. 

            Opponents state that SB 1344 proposes to make the current  
            situation even worse by allowing individual domestic workers  
            to sign agreements waiving their right to be paid for time  
            they are on the employer's premises, subject to the employer's  
            control, and required to respond at a moment's notice.  
            Opponents claim that characterizing these agreements as a  
            voluntary choice ignores both the unique vulnerability of many  
            domestic workers and the tremendous power imbalance in many of  
            these employment settings. In reality, many workers would be  
            compelled or forced to sign away these rights and would  
            forfeit both their wages and freedom. 


          6.  Prior and Related Legislation  :

            SB 1015 (Leyva), currently referred to the Senate  
            Appropriations Committee - deletes the January 1, 2017, sunset  







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            date of the Domestic Worker Bill of Rights.
          
            AB 241 (Ammiano), Chapter 374, Statutes of 2013 - enacted the  
            Domestic Worker Bill of Rights to, until January 1, 2017,  
            regulate the hours of work of certain domestic work employees  
            and provide an overtime compensation rate for those employees.  
             Also, this bill defined various terms for the purposes of the  
            act, including defining domestic work to mean services related  
            to the care of persons in private households or maintenance of  
            private households or their premises.


          SUPPORT
          
          California Association for Health Services at Home (Sponsor)
          Luxe Homecare, Inc. (Co-Sponsor)
          1-Individual
          OPPOSITION
          
          American Federation of State, County and Municipal Employees,  
          AFL-CIO
          California Domestic Workers Coalition
          Service Employees International Union 
          United Domestic Workers of America-AFSCME Local 3930, AFL-CIO

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