Thursday, September 1, 2011

CA's AB 889 - Not As Bad As The Press Says It Is

California's "Nanny State Law" has been generating some controversy lately in the larger press but I'm not sure it deserves the all the criticism the press has been heaping upon it.

AB 889, Ammiano - D, San Francisco, would repeal the existing exemptions of various labor laws (wage, hour, workers' compensation) to "domestic employees" - the intention is to cover workers of service organizations that provide housekeeping, elder care and other services to us busy men and women working our day jobs and are too exhausted or don't have the time to perform all of these tasks.

The fear of the general press is that this law would also capture those who are usually hired for cash by Mom and Dad when they want to go out for the night, have the house cleaned, get the lawn mowed, have the car washed, take care of Grandma or Grandpa for a day, pick up the dog poo, etc. by one of the neighborhood kids.

These are the jobs that my son and daughter were hired to do around our little neighborhood. Occasional once in a while jobs that taught my kids responsibility, what working for money meant, savings, discipline - in short all of the attributes that we as law abiding, responsible citizens want our kids to learn as they grow up in a capitalist society so that when they become adults they know what the value of a dollar is and how good, hard work is appreciated and rewarded.

I understand the intention of this law - to protect a class of workers who traditionally have otherwise been abused (relative to California's normal wage and labor laws) by labor service companies that have used these exemptions to build a domestic services work force.

The bill's good intentions, however, may be overshadowed by the unreasonably broad definitions of "domestic work" and "domestic work employee".

A whole new part of the Labor Code, 4.5, would be added to Division 2, starting with section 1450.

1451 contains the definitions:

"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.

"Domestic work employee" means an individual who performs domestic work and includes live-in domestic work employees and personal attendants.

Exempt from the definition of a domestic work employee are parents, grandparents, spouses, siblings, children, or legally adopted children of the domestic work employer, and any person under 18 years of age who is employed as a babysitter for a minor child of the domestic work employer.

The definitions could still capture the work that my kids did for others around the neighborhood - and that may be a problem, but not necessarily so.

For instance, existing law would still penalize me as a domestic employer of the local 15 year old kid if I didn't provide him or her (other than for baby sitting) with required work notices about wages and hours. Heck - we violate these laws all day long, every day and no one is worse off for the wear.

It's kind of like speeding on the freeway - the limit is 65 mph, but traffic moves along quite nicely (okay, not in Los Angeles) at 75 and if no one is driving like a maniac then enforcement is lax. When someone is weaving in and out, causing a nuisance or safety hazard then the constabulary takes notice and those dreaded lights atop a black and white draw attention to the situation to the chagrin of the maniac.

Relative to injuries, if you own your home, then presumably your homeowner policy should cover these domestic employees because of the work comp provisions in those policies. But if you're a renter without rental insurance (a very large population) then you risk some nasty labor enforcement action by the Department of Industrial Relations unless you spend the estimated $2,000 per year to buy a comp policy - that ain't happening!

On the flip side, domestic employees are at the bottom of the totem pole in the employment law protection scheme and they ARE taken advantage of by unscrupulous business people. I understand that this class of workers deserve the same protections against abuse as other workers in the state.

So the bottom line - I'm not entirely against the concept of AB 889. I just think the definitions need to be refined a bit so that us "domestic employers" don't unwittingly violate labor laws by hiring the local kid on a regular basis to mow the lawn.

I don't believe the general press completely understands this law, and perhaps they haven't even read it and are feeding the maelstrom of objection through vicarious reasoning.

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