Tuesday, September 6, 2011

AB 899 Contains Unacceptable Presumption Provision

I said on Thursday that AB 899 (Ammiano, D-San Francisco) wasn't as bad as the general press was making of it.

However there is one aspect of that bill that should give pause to legislators debating the bill - a weird provision that provides for tort liability in a workers' compensation remedy for domestic workers.

Currently in suspense, AB 899which has been amended five times since it was introduced on Feb. 17, would require all domestic work employers to carry a workers' compensation policy covering domestic workers, which includes live-in caregivers and personal attendants. The definition of personal attendants in the bill includes babysitters, but other provisions state that family members and individuals under 18 would not be considered domestic employees.

Employers of domestic workers would be required to maintain records of wages paid and hours worked, and the bill also proposes a presumption that any injury suffered by a domestic worker was caused by the negligence of the employer.

Most of AB 899 is already law in other parts of the Labor Code - e.g. the requirement for wage records, notices, workers' compensation, etc. This bill is a refinement of those requirements.

The real troubling aspect of AB 899 is the presumption of negligence.

I have opined in the past that I'm not a big fan of presumptions. I don't believe that they are necessary in most circumstances, they create liability in situations where none was intended, and I believe they create more litigation than resolve it.

The presumption AB 899 though is worse because it creates a tort liability where workers' compensation should be the exclusive remedy. Negligence implies fault, which has no place in workers' compensation - a "no fault" system.

So, while most of AB 899 is not the draconian "Babysitter Apocalypse" that the press has made it out to be, it needs work before being revitalized out of suspense for 2012. Most importantly the presumption of negligence needs to be removed, and the issue of work place injuries by domestic workers needs to stay within the workers' compensation system.

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