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AB 889 (Ammiano) – OPPOSE UNLESS AMENDED

August 8, 2011

Honorable Christine Kehoe
Chair, Senate Appropriations Committee
Capitol Building, Room 2206
Sacramento, CA 95814

Dear Senator Kehoe:

Disability Rights California, a non-profit advocacy organization mandated to advance the human and legal rights of people with disabilities, opposes AB 1205 unless amended. This bill is scheduled to be heard in the Senate Appropriations Committee on August 15, 2011. At the Senate Labor hearing on July 6th, Chairman Lieu and other Senators urged the author to meet with opponents about our issues. No meetings have taken place with us, so our position remains unchanged.

We acknowledge the social justice issues which motivated this bill and the vital work done by personal assistance workers. However, AB 889 as amended threatens the ability of our constituents to live safely and independently in their homes and avoid unwanted and unneeded institutionalization because people with disabilities are overwhelmingly low-income and simply cannot bear the additional costs of the bill. The people with disabilities who would be affected by this bill have more in common economically with the domestic workers than they do with the wealthy whose abuse of domestic workers was the impetus for this bill.

People with disabilities who hire personal care attendants are doing so out of necessity, not choice. While wealthy people without disabilities have a choice to do their personal care and domestic chores themselves, people with disabilities may not. The personal assistance may be necessary so they can get out of bed, eat, go to work, have clean clothes and a safe living space and participate in social and community activities.

In addition to paying for personal assistance, people with disabilities have higher out-of-pocket disability-related costs. For example, at least 90% of private health insurance policies in California set an annual cap of $2,000 on durable medical equipment, a category which includes such critical items as wheelchairs, walkers, hospital beds and breathing equipment. This means that a person with a disability who needs even one moderately priced item – such as a manual wheelchair – or a few lower-cost items - pays out of pocket – up to many thousands of dollars per year. There are many more examples of disability-related costs, such as home modifications and vehicle adaptations, which people with disabilities pay for out of pocket. The playing field is simply not even for people with disabilities, and this bill makes it more uneven.

We offer the attached amendments which exempt people with disabilities who hire domestic workers, or the parent, legal guardian, spouse, child or legally adopted child of such a person, and which, if accepted, would remove our opposition.

We appreciate that the author has amended out some of the most expensive provisions of the bill. However, other amendments have insulated the state and some vendors from the costs of this bill, while retaining the costs low-income people with disabilities, which is fundamentally unfair.

Current Law
1.   Current law requires employers to provide its employees with specified information regarding their wages either semimonthly or at the time of each wage payment. This requirement does not apply to people employed by an owner or occupant of a person’s home, where the job is incidental to owning, maintaining, or use of the home, including care and supervision of children, or where job duties are personal and not related to trade, business, profession or occupation of the owner or resident.

2.   Current law requires employers to have workers’ compensation insurance. Employers who do not have workers compensation insurance can be fined and sent to jail. Employers may also have to pay a worker’s medical bills. This requirement does not apply to household employees, baby sitters, and a gardener who works less than 52 hours or earned less than $100 in 90 calendar days before an injury or at risk of a work hazard.

3.   Current law requires employers to comply California Occupational Safety and Health Act of 1973 but excludes household domestic service (i.e. workers) in the definition of employment.

4.   California employers and their employees are parties to an at-will employment arrangement where either party may terminate employment without notice unless they executed a private employment agreement or collective bargaining agreement.


THIS BILL WOULD:

1. Expand the categories of who must provide their employees with specified information regarding their wages either semimonthly or at the time of each wage payment. This includes people employed by an owner or occupant of a person’s home, where the job is incidental to owning, maintaining, or use of the home, including care and supervision of children, or where job duties are personal and not related to trade, business, profession or occupation of the owner or resident. For example, an attendant-care worker or domestic services worker.

2.   Require all employers with household employees (e.g. domestic workers, attendants, caregivers, etc.), baby sitters, and gardeners who work less than 52 hours or earned less than $100 in 90 calendar days before an injury or at risk of a work hazard to have workers compensation insurance and be bound by workers compensation law.

3.   Provide a process for investigating alleged violations of the California Occupational Safety and Health Act of 1973 to include household domestic services employment (i.e. work).

4.   Regulate the wages, hours, and working conditions of covered domestic work employees (i.e. child care providers, care givers of the sick, convalescing, or elderly persons, house clearers, housekeepers, maids, and other household occupations, except babysitter under the age of 18, IHSS providers, a spouse, grandparent, child or legally adopted child) in the following way:

?     Allows a domestic work employee the right to sue an employer when the regulations are violated;
?     Imposes fines on employers who violate the rules;
?     Provides an overtime compensation rate for domestic work employees (time and a half after 8 hours in one workday and 40 hours in one workweek and double time after 12 hours in one workday);
?     Requires specific annual paid vacation, and paid sick days for domestic work employees, breaks and lunch breaks;
?     Requires 8 hours of uninterrupted sleep, except in an emergency or if there is a separate agreement, for domestic work employees who are required to be on duty for 24 consecutive hours or more. The eight hours of sleeping time shall constitute hours worked if there is no written agreement. If an employer does not hire a replacement worker for eight consecutive hours or, an employer has no proof that an employee has 8 hours of uninterrupted sleep, it will be assumed that the employee did not get 8 hours of uninterrupted of sleep.
?     Live-in workers who are not required to be on duty 24 hours a day will be entitled to at least 12 consecutive hours off of work of which eight of those hours are for sleeping. Live-in workers will not also be required to work more than 5 days in any workweek without a day off. If a worker is required to work they will be required to be compensated in accordance with section 510 of the Labor Code.
?     Requires reporting time pay, when a worker shows up to work and the employer cancels the job.
?     Requires a bed and sanitary conditions for live-in workers.
?     Requires that workers be allowed to make basic decisions regarding the type of food they eat and prepare meals.

ANALYSIS:

Our opposition to the bill is based on the economic realities of people with disabilities, and the impact of those realities on their lives and choices. Californians with disabilities, including seniors, are among the poorest people in the state. According to the Center for Personal Assistance Services at UCSF, in 2009, these are the incomes of people with disabilities with self-care limitations in California:

·      19.2% live on less than the Federal Poverty Level - (currently $10,890)
·      28.6% have from 100% to 199% of the FPL (between $10,890 and $21,671),
·      17.4% have from 200-299% of the FPL (between $21,780 and $31,581), and
·      34.8% have at least 300% of the FPL ($32,670 or above).[1]

By contrast, in 2008, the median family income of Californians was $61,017.[2]

This bill applies the same rules to the vast majority of people with disabilities who pay privately for attendant care, and who are poor or who have low or moderate incomes, as it does to rich people without disabilities who hire a housekeeper to maintain a mansion. While the bill does not apply to In Home Supportive Services directly, it does affect people who are on IHSS but who must pay privately for services IHSS does not cover, such as reading mail for a blind person. The effect: a significant number of people with disabilities will be unable to afford to comply with the requirements of this bill (and no way of knowing the requirements), and will be at risk of being fined, sued, facing financial hardship, losing independence and homes, or leaving jobs and going on IHSS.

In the Bay Area, people with disabilities pay at least $12/hr for attendant care, some for just a short time per day or week, but many for longer shifts.

Here are examples of some of their current costs for personal assistance:

Example A: 90 hours/month (equivalent to IHSS average hours per month)

Private pay @ 12.00/hr = $1,056/month x 12 = $12,672 current cost

Example B: Higher use: 7 hrs/day; 210 hrs/month @ $12/hr x 12 = $30,240

Our opposition centers on this basic fact: the vast majority of Californians with disabilities are barely surviving economically and they cannot bear the costs of this bill, as much as they would wish to support the rights of their employees. We ask the author and the sponsors and the committee to craft a solution which does not sacrifice one group of low-income Californians for another, and which respects the human rights and dignity of all involved.

Very truly yours,

Deborah Doctor
Legislative Advocate, Disability Rights California


CC: Honorable Chair and Members of the Senate Appropriations Committee
CC: Bob Franzoia, Staff Director, Senate Appropriations Committee
CC: Misa Yokoi-Shelton, Legislative Aide, Assembly Member Ammiano’s Office


Suggested Amendments

CHAPTER 1. GENERAL PROVISIONS AND DEFINITIONS

1450. This part shall be known and may be cited as the Domestic Work Employee Equality, Fairness, and Dignity Act. 1451. As used in this part, the following definitions apply:      

(a)      “Activities of daily living or independent living” means activities that relate to personal care and/or independent living, and includes, but is not limited to: bathing, showering, dressing and undressing, grooming, personal hygiene activities, preparing meals, feeding, getting into or out of a chair or bed, toileting, using a telephone, reading, traveling, shopping for groceries and personal items, performing housework, banking and money management, recognizing and avoiding potentially hazardous situations, caring for service animals, using and maintaining assistive technology, caring for a dependent minor child, and activities associated with tasks authorized by In-Home Supportive Services (IHSS).      

(b)      "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 sick, convalescing, or elderly persons, house cleaners, housekeepers, maids, and other household occupations.

(c) (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 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.

(D) Any person employed by a licensed health facility, as defined in Section 1250 of the Health and Safety Code.

(E) Any person 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) and 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 funding for those services is provided through the State Department of Developmental Services.

(F) 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) The State of California or individuals who receive 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 the Welfare and Institutions Code.

(B) Any person with functional limitation who needs assistance with activities of daily living or independent living which, absent the functional limitation, he or she would perform, or the parent, legal guardian, spouse, child or legally adopted child of such a person, who hires a personal attendant to assist with such activities, either directly or through a third-party employer, temporary service, or staffing agency. This exemption applies if no significant amount of work is required other than such assistance.

(C) 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.

(D) A licensed health facility, as defined in Section 1250 of the Health and Safety Code.

(d) "Emergency" means an unpredictable or unavoidable occurrence of a serious nature that occurs unexpectedly requiring immediate action.

(e)      “functional limitation” means limitations or restrictions in physical, sensory, emotional, or mental functioning, or in an individual’s ability to participate fully in age-appropriate activities such as working, taking part in social or leisure activities, or maintaining a household.

(f) "Hours worked" means the time during which a domestic work employee is subject to the control of a domestic work employer, and includes all time the domestic work employee is suffered or permitted to work, whether or not required to do so.

(g) "Live-in domestic work employee" means a domestic work employee who lives in the establishment where he or she works.

(h) "Personal attendant" means a person who performs domestic work related to the supervision, feeding, or dressing of a child or other person who, by reason of advanced age, physical disability, or mental deficiency, needs supervision. Personal attendant includes babysitters. The status of "personal attendant" applies if no significant amount of work other than the foregoing is required.




[1]            http://www.pascenter.org/state_based_stats/disability_stats/acs_income.php?state=california#d

[2]            http://quickfacts.census.gov/qfd/states/06000.html

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