California Governor Jerry Brown signed into law two more employment law-related bills.
SB
770 expands California's "paid family leave" program. This law provides up to six weeks of paid disability benefits for employees who are off work to care for covered family members or to bond with a child. Existing law applied only to leave taken to care for spouses, domestic partners, parents or children. (California' state disability insurance benefits apply to the employee's own illness.)
Effective July 1, 2014, the new law will expand the benefit for when the employee takes leave to care for grandchildren, grandparents, siblings, or in-laws.
AB 241 is a new wage-hour law that provides for overtime pay to certain employees who qualify as "domestic service employees." California Wage Order 15-2001 usually governs the overtime rules for domestic workers, such as housekeepers and personal attendants for households. The new law will modify the wage order.
Basically, those employees who qualify under this law as "a domestic worker who is a personal attendant" will earn time and one half overtime pay for all hours worked over 9 in a day or 45 in a week. But the trick is: this law is full of exceptions and definitions regarding who counts as a "domestic worker who is a personal attendant." For example certain family members performing care, and "casual" baby sitters do not count, but full-time baby sitters do. Another example - nursing home employees do not count under this law. The definitions go on for days:
Basically, those employees who qualify under this law as "a domestic worker who is a personal attendant" will earn time and one half overtime pay for all hours worked over 9 in a day or 45 in a week. But the trick is: this law is full of exceptions and definitions regarding who counts as a "domestic worker who is a personal attendant." For example certain family members performing care, and "casual" baby sitters do not count, but full-time baby sitters do. Another example - nursing home employees do not count under this law. The definitions go on for days:
(a) (1) “Domestic work” means services related to the care of persons in private households or maintenance of private households or their premises. Domestic work occupations include childcare providers, caregivers of people with disabilities, sick, convalescing, or elderly persons, house cleaners, housekeepers, maids, and other household occupations.
(2) “Domestic work” does not include care of persons in facilities providing board or lodging in addition to medical, nursing, convalescent, aged, or child care, including, but not limited to, residential care facilities for the elderly.
(b) (1) “Domestic work employee” means an individual who performs domestic work and includes live-in domestic work employees and personal attendants.
(2) “Domestic work employee” does not include any of the following:
(A) Any person who performs services through the In-Home Supportive Services program under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, or Sections 14132.95, 14132.952, and 14132.956 of, the Welfare and Institutions Code.
(B) Any person who is the parent, grandparent, spouse, sibling, child, or legally adopted child of the domestic work employer.
(C) Any person under 18 years of age who is employed as a babysitter for a minor child of the domestic work employer in the employer’s home.
(D) Any person employed as a casual babysitter for a minor child in the domestic employer’s home. A casual babysitter is a person whose employment is irregular or intermittent and is not performed by an individual whose vocation is babysitting. If a person who performs babysitting services on an irregular and intermittent basis does a significant amount of work other than supervising, feeding, and dressing a child, this exemption shall not apply and the person shall be considered a domestic work employee. A person who is a casual babysitter who is over 18 years of age retains the right to payment of minimum wage for all hours worked, pursuant to Wage Order No. 15-2001 of the Industrial Welfare Commission.
(E) Any person employed by a licensed health facility, as defined in Section 1250 of the Health and Safety Code.
(F) Any person who is employed pursuant to a voucher issued through a regional center or who is employed by, or contracts with, an organization vendored or contracted through a regional center or the State Department of Developmental Services pursuant to the Lanterman Developmental Disabilities Services Act (Division 4.5 (commencing with Section 4500) of the Welfare and Institutions Code) or the California Early Intervention Services Act (Title 14 (commencing with Section 95000) of the Government Code) to provide services and support for persons with developmental disabilities, as defined in Section 4512 of the Welfare and Institutions Code, when any funding for those services is provided through the State Department of Developmental Services.
(G) Any person who provides child care and who, pursuant to subdivision (d) or (f) of Section 1596.792 of the Health and Safety Code, is exempt from the licensing requirements of Chapters 3.4 (commencing with Section 1596.70), 3.5 (commencing with Section 1596.90), and 3.6 (commencing with Section 1597.30) of Division 2 of the Health and Safety Code, if the parent or guardian of the child to whom child care is provided receives child care and development services pursuant to any program authorized under the Child Care and Development Services Act (Chapter 2 (commencing with Section 8200) of Part 6 of Division 1 of Title 1 of the Education Code) or the California Work Opportunity and Responsibility to Kids Act (Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code).
(c) (1) “Domestic work employer” means a 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, employs or exercises control over the wages, hours, or working conditions of a domestic work employee.
(2) “Domestic work employer” does not include any of the following: (A) Any person or entity that employs or exercises control over the wages, hours, or working conditions of an individual who performs domestic work services through the In-Home Supportive Services program under Article 7 (commencing with Section 12300) of Chapter 3 of Part 3 of Division 9 of, or Sections 14132.95, 14132.952, and 14132.956 of, the Welfare and Institutions Code or who is eligible for that program.
(B) An employment agency that complies with Section 1812.5095 of the Civil Code and that operates solely to procure, offer, refer, provide, or attempt to provide work to domestic workers if the relationship between the employment agency and the domestic workers for whom the agency procures, offers, refers, provides, or attempts to provide domestic work is characterized by all of the factors listed in subdivision (b) of Section 1812.5095 of the Civil Code and Section 687.2 of the Unemployment Insurance Code.
(C) A licensed health facility, as defined in Section 1250 of the Health and Safety Code.
(d) “Personal attendant” means any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of personal attendant shall apply when no significant amount of work other than the foregoing is required. For purposes of this subdivision, “no significant amount of work” means work other than the foregoing did not exceed 20 percent of the total weekly hours worked.
Understand? Right.
The law is set to "sunset" (or expire) on 1/1/17, which coincides with the date you will be able to figure out who is covered. Presumably, the sunset provision exists in case this new law results in a problem because, for example, people who need in-home care reduce caregivers' hours to avoid paying overtime, or maybe because those who are attempting to work as domestic employees lose work they otherwise would have received if they did not earn overtime... But the bill mandates a "Governor's Council" to evaluate its effects on such issues and others.
This new law will have to be read with the U.S. Department of Labor's new rules on personal attendants (discussed here). Employers must comply with the more employee-friendly law. We will have a more detailed analysis in an article soon. SV plug: We also will cover these laws in more detail in our annual employment law update (information here).
This new law will have to be read with the U.S. Department of Labor's new rules on personal attendants (discussed here). Employers must comply with the more employee-friendly law. We will have a more detailed analysis in an article soon. SV plug: We also will cover these laws in more detail in our annual employment law update (information here).
