California Governor Brown signed the California Domestic Workers’ Bill of Rights, AB 241, into law on September 26, 2013. The regulations become effective January 1, 2014.
What does this mean to California household employers?
Household employment, also referred to as domestic service employment, is subject to both Federal and state regulations. It is vitally important to understand that when Federal and state regulations are in conflict the regulation most favorable to the employee is the one that rules.
Examples of household or domestic service workers include nannies, maids, housekeepers, senior caregivers and other private service professional who work in a private home.
California household employers must first make a determination, based on the nature of the work performed, whether their employee is a domestic service worker or a personal attendant.
Personal Attendant Definition and Regulation
A personal attendant is “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.” A personal attendant may provide “incidental” housekeeping services such as laundry, bed-making, cooking and cleaning, so long as the “incidental” do not exceed 20% of their time on duty.
Examples of a personal attendant include nannies and senior caregivers, so long as their job duties do not include more than “incidental” housekeeping functions.
Under the new law, a live-in household employee who meets the definition of a personal attendant must be paid at an agreed hourly rate, and is entitled to overtime calculated at 1.5 times the hourly rate for hours worked over 9 in a single day or more than 45 in a defined 7 day work week. Live-out workers who meet the definition of a personal attendant are entitled ot overtime for hours over 9 in a day (state law) or 40 in a week (Federal law).
The new law exempts personal attendants employed by the State of California In-Home Supportive Services (IHSS) program. It applies to personal attendants employed by a private household (either directly or via referral from a registry service) and those employed by third-party agencies. A family who engages a personal care attendant via third-party referral must CAREFULLY determine who the legally responsible employer is for payroll tax and workers compensation insurance purposes. Your contract with the third party referral will either clearly state that the agency employs the caregiver and is responsible for all tax and insurance compliance, or you must assume that the private household is the legal employment entity.
Domestic Service Worker Definition and Regulation
All individuals who are employed by a private household or by any third-party employer whose scope of duties makes them ineligible for the title of a personal attendant is by definition a domestic service worker.
Examples of domestic service workers include nannies with housekeeping duties, housekeepers, maids, and senior caregivers providing homemaker services (personal laundry, household linens, maid services such as vacuuming, dusting, mopping, bathrooms).
A domestic service worker who resides with the employer, such as a live-in housekeeper, must paid at an agreed hourly rate, and is entitled to overtime calculated at 1.5 times the hourly rate for hours worked over 9 in a single day or more than 45 in a defined 7 day work week.
Domestic service workers who come and go, and maintain a separate residence, paid at an agreed hourly rate, and is entitled to overtime calculated at 1.5 times the hourly rate for hours worked over 8 in a single day or more than 40 in a defined 7 day work week.
What Actions Should California Household Employers Take?
- Review written work agreements, paying particular attention to duties and compensation language.
- Institute time tracking that is DAILY. Accurate and contemporaneous records of days and hours worked is an employer obligation.
- Understand meal and rest breaks – on duty v off duty. If the employee is not free to leave the premises during a break, it is on duty. This applies even if the children are napping for example.
- Comply with California pay rate notification requirements.
We invite you to download our free tip sheet for California household employers: