Domestic workers are crucial part of the economic and social fabric of our country. However, isolated and hidden behind closed doors and mostly unprotected under the law, domestic workers face harsh working conditions

Shah, Hina B

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A Long Journey to Secure Permanent Overtime Rights for California Domestic Workers

Golden Gate University School of Law: Digital Commons

Golden Gate University School of LawGGU Law Digital CommonsGGU Law Review Blog Student Scholarship10-5-2016A Long Journey to Secure Permanent OvertimeRights for California Domestic WorkersHina B. ShahGolden Gate University School of Law, hshah@ggu.eduFollow this and additional works at: http://digitalcommons.law.ggu.edu/ggu_law_review_blogPart of the Civil Rights and Discrimination Commons, and the Labor and Employment LawCommonsThis Blog Post is brought to you for free and open access by the Student Scholarship at GGU Law Digital Commons. It has been accepted for inclusionin GGU Law Review Blog by an authorized administrator of GGU Law Digital Commons. For more information, please contact jfischer@ggu.edu.Recommended CitationShah, Hina B., "A Long Journey to Secure Permanent Overtime Rights for California Domestic Workers" (2016). GGU Law ReviewBlog. Paper 45.http://digitalcommons.law.ggu.edu/ggu_law_review_blog/45Photo Courtesy of the CA Domestic Workers CoalitionGolden Gate University Law ReviewA Long Journey to Secure Permanent Overtime Rights forCalifornia Domestic WorkersPUBLISHED ON October 5, 2016October 19, 2016 by Hina ShahCalifornia was amongst the firststates to regulate long-hoursand impose overtime premiumpay at the turn of the twentiethcentury. However, it was notuntil almost a century later,that the Legislature andGovernor recognized that therewas no justification to excludedomestic workers from thisfundamental protection. OnSeptember 12, 2016, GovernorBrown signed SB 1015(http://www.leginfo.ca.gov/pub/15-16/bill/sen/sb_1001-1050/sb_1015_bill_20160211_introduced.html), a bill makingovertime rights permanent formore than 300,000 nannies andcaregivers for seniors andpeople with disabilities. Forover a decade, domesticworkers in California havemobilized a grassroots, worker-led statewide movement forequal treatment under the law. Golden Gate University Schoolof Law’s Women’sEmployment Rights Clinic(WERC)(http://law.ggu.edu/clinics-and-centers/clinics/womens-employment/) has served aslegal counsel to the California Domestic Workers Coalition (http://www.cadomesticworkers.org/) since2010 in the Coalition’s effort to extend basic wage and hour protections to domestic workers.A combination of racism, sexism, and the fear of regulating the home resulted in excluding domesticworkers from most legal protections. While other workers gained labor protection at the turn of thetwentieth century, domestic workers—by the 1930’s numbering as many as those in “the railroads, coalmines, and automobile industry combined”(http://www.datacenter.org/reports/homeiswheretheworkis.pdf)—were categorically excluded. In 1974,the Fair Labor Standards Act extended minimum wage protections to domestic workers but not to homecare companions for the elderly or disabled.  Domestic workers fared no better in state wage and hourcoverage. Approximately 18 states gave minimum wage and overtime coverage to some domesticworkers. California regulates wage and hour laws by statute as well as by regulations, called WageOrders, promulgated by the Industrial Welfare Commission (http://www.dir.ca.gov/iwc/iwc.html).California began regulating domestic work in 1976, when the Industrial Welfare Commission adoptedthe Household Occupations Wage Order 15(https://www.dir.ca.gov/iwc/WageOrders2006/iwcarticle15.html).  Domestic workers who cared forproperty (housecleaners) were given full wage and hour protections but those who cared for humanbeings were not. The 1976 wage order completely excluded “personal attendants” – childcare providersand caregivers who spent a significant amount of time caring for children, elderly or people withdisabilities from coverage. Personal attendants were excluded from wage and hour coverage based onthe erroneous belief that these workers were primarily young or elderly persons doing the work tosupplement income received from their parents or social security benefits, respectively.Domestic workers are crucial part of the economic and social fabric of our country.  However, isolatedand hidden behind closed doors and mostly unprotected under the law, domestic workers face harshworking conditions. In a California report (http://www.datacenter.org/wp-content/uploads/HomeTruths.pdf) issued by the National Domestic Workers Alliance, the medianhourly wage for nannies is $8.57, for caregivers is $8.69, and for housecleaners is $10.11. The researchersfound that sixty percent (60%) of workers were paid an hourly wage at their primary job that is belowthe level needed to adequately support a family (using a conservative measure of income adequacy).Low wages have resulted in material hardship for domestic workers.  Thirty-five percent (35%) ofworkers reported that in the past twelve months they were forced to pay their rent or mortgage late andnearly one quarter (23%) reported that in the month prior to the survey there were times when there wasno food to eat in their own homes because they had no resources to obtain it. Compounding thisproblem, twenty-five percent (25%) of domestic workers were paid below the California minimum wage.In 2001, personal attendants got the right to minimum wage. Thanks to the California Domestic WorkerCoalition, personal attendants gained overtime protections in 2014, through AB 241(https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB241).  AB 241 went intoeffect in January 2014 but was set to expire or “sunset” on January 1, 2017, unless the Legislatureextended or removed the sunset provision. SB 1015 removed the sunset provision, making overtime apermanent reality for personal attendants in California. Now, personal attendants (with someexceptions) are entitled to overtime after nine (9) hours of work in a day and after forty-five (45) hours ina week.One reason why the overtime bills garnered opposition was the fear that home care would becomeunaffordable for many low to modest income households. However, available evidence is to thecontrary. According to the Paraprofessional Healthcare Institute (http://phinational.org/about),institutionalization rates are not higher in states that provide home care workers with minimum wageand overtime. In California, since the passage of AB 241, there is no evidence that institutionalizationrates have increased. Furthermore, in the first comprehensive study(http://www.irle.ucla.edu/publications/documents/UCLA_domesticworkers_report.pdf) of California’semployers, the UCLA Labor Center found that only eight percent (8%) of domestic service employershire for overtime.Photo Courtesy of the CA Domestic Workers CoalitionBased on our on-the ground experience, the Clinic has seen a positive impact on both workers andconsumers as a result of the new overtime rules. Many agencies and household employers havegenuinely complied with the mandate of AB 241. In some cases, workers have seen a reduction in theirhours but an increase in their pay, as their employers have eliminated a flat daily or weekly rate. AB 241has also addressed the most egregious cases, where a single worker works 24/7 shift. These shifts, notonly result in significant wage and hour violations, but also detrimentally impact the health of theworker and the quality of care for the consumer. As a result of AB 241, these employers have re-evaluated their shift scheduling and have moved away from 24-hour shift scheduling. With the passageof SB 1015, domestic workers and employers will have clear standards that provide clarity and fosters astable workforce.Today’s domestic workers are staffed by trained professionals. These workers are their families’breadwinners. Making permanent overtime rights for these workers is an important first step in valuingtheir labor as real work, and recognizing the dignity of those who care for our loved ones.Hina Shah (https://www.ggu.edu/shared-content/faculty/bio/hina-shah) is an Associate Professor of Law andDirector of the Women’s Employment Rights Clinic at Golden Gate University School of Law.CATEGORIES GGU LAW REVIEW, PROFESSOR SUBMISSIONS • TAGS CALIFORNIA, DISABLED,DOMESTIC WORKER, ELDER LAW, EMPLOYEE, EMPLOYER, FAIR PAY, GOVERNOR BROWN,LABOR, LEGISLATURE, NANNY, OVERTIME, SEXISM, WERC, WORKERSBlog at WordPress.com.

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A Long Journey to Secure Permanent Overtime Rights for California Domestic Workers

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