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 household employee who meets the definition of a personal attendant is entitled to overtime regardless of whether they live in or out.
Live-out personal attendants are paid overtime when they work more than 9 hours in a day or 40 hours in the 7-day work week (whichever is more adventageous to the employee).
Live-in personal attendants are paid overtime when they work more than 9 hours in a day or 45 hours in the 7-day work week.
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 (often called registries) 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 other 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, are paid at an agreed hourly rate, and are 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?
HomeWork Solutions consulted with LegallyNanny.com and Bob King, Esq. reports, "With the changes in both California and federal law, it is imperative that household employers review and revise their written work agreements to reflect the new overtime rules. Employers also must provide employees with a new Labor Code notice reflecting the new overtime rates."
HWS suggests that a review of your written work agreements should pay particular attention to duties and compensation language. You have an obligation under Federal law to maintain accurate and contemporaneous time tracking records. If you are not tracking daily hours worked, now would be an excellent time to start.
You also must understand meal and rest breaks. Your household employees are entitled to meal and rest breaks under California law. These may be granted “on duty” – meaning the employee is not free to leave the premises and still remains responsible for the protection and safety of the individuals they care for. On duty meal and rest breaks must be paid, and are included in any overtime calculations.
Feel free to request a free telephone consultation to discuss any questions.