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Will Babysitters Fall Under Potential 'Domestic Workers' Law in CA?

By now, you may have read Sen. Doug La Malfa's startling op-ed regarding a "domestic workers" bill in California that is working its way through the legislative process. La Malfa's op-ed points out this bill could include babysitters over 18 to be entitled to overtime pay, and that parents may be forced to provide a substitute caregiver every two hours to cover "rest and meal breaks":


"Under AB 889, household “employers” (aka “parents”) who hire a babysitter on a Friday night will be legally obligated to pay at least minimum wage to any sitter over the age of 18 (unless it is a family member), provide a substitute caregiver every two hours to cover rest and meal breaks, in addition to workers' compensation coverage, overtime pay, and a meticulously calculated timecard/paycheck.

Failure to abide by any of these provisions may result in a legal cause of action against the employer including cumulative penalties, attorneys' fees, legal costs and expenses associated with hiring expert witnesses, an unprecedented measure of legal recourse provided no other class of workers – from agricultural laborers to garment manufacturers. (On the bright side, language requiring an hour of paid vacation time for every 30 hours worked was amended out of the bill in the Senate.)

Unfortunately, the unreasonable costs and risks contained in this bill will discourage folks from hiring housekeepers, nannies and babysitters and increase the use of institutionalized care rather than allowing children, the sick or elderly to be cared for in their homes.

A spokesperson from Democrat Assemblyman Tom Ammiano's office (who sponsored the bill) told me this week that the legislation would not apply to babysitters. La Malfa's spokesperson, however, said that a babysitter over 18 years old could indeed be considered a "domestic worker."


So which is it?

I spoke with David Balter in California's Division of Labor Standards Enforcement to see whether babysitters were included under the state's description of "domestic workers" as understood under the state labor code. It seems the current Industrial Welfare Commission wage order has a slighty varying vocabulary from what's in Ammiano's bill. Currently, babysitters over 18 are considered "personal attendants" under household occupations (and are exempted from several of the items in the code, it seems). But since the office is not able to comment on pending legislation, they are unable to clear up any confusion with AB 889.

So I looked at AB 889 myself. Here is what I found:

(b) (1) "Domestic work employee" means an individual who performs
domestic work and includes live-in domestic work employees and
personal attendants.

And later:  "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.

(2) "Domestic work employee" does not include any of the
(C) Any person under 18 years of age who is employed as a
babysitter for a minor child of the domestic work employer."


So far, it sounds like babysitters over 18 who aren't relatives are indeed included in these provisions.

Ammiano's office pointed to the approximately 200,000 domestic workers in California, saying they needed to be given the same rights as other workers, and cited cases like Meg Whitman's housemaid and Arnold Schwarzenegger's mistress. The crafting of the legislation wasn't particularly driven by constituent calls in this case, however, according to that office. The point of the bill seems to be to bring these workers under the rules that apply to many in the state. However, even the Division of Labor Standards Enforcement isn't able to comment to journalists definitively right now if babysitters will be included.

This quote comes from a spokeswoman for another assemblyman who helped introduce the bill --  V. Manuel Pérez -- and was reported by the local CBS affiliate:

"AB 889 has nothing to do with babysitters," Amy Wilson, communications director for Perez, said.  "Unfortunately a press release from one of the bill’s critics was depicted as a news article on the Internet and it has been picked up and repeated by others who have not bothered to do the fact checking."

Well, I bothered to do the fact-checking. And, from what I can determine, the bill does seem to include babysitters over 18, which was what La Malfa's office said from the beginning.


The bill right now has been just been put on hold in the California Senate appropriations committee, but La Malfa's office said it could move forward at any time while the legislature is still in session (or come back next year).

Several groups have risen up to oppose the bill, said La Malfa's office. They are the following: AARP, Accredited Nursing Care, Agility Health, Amada Home Care, Association of Premier Nanny Agencies (3), At Home Care Solutions, Aunt Ann’s Agency, Bright Star, California Chamber of Commerce, California Foundation for Independent Living Centers, California Supported living Network, Care to Stay Home, Civil Justice Association of California, ComForcare Senior Services (3), Comfort Keepers (17), Competent Care, Home Health Nursing (2), Craig Cares, Crunch Care, Desert Arc, DialMED Home Care (3), Disability Rights California, Disability Rights Education and Defense Fund, Elder Care Guides, Help United , Help Unlimited, Help Unlimited HomeCare, Heritage Senior Care Inc. (10), Hillendale Home Care, Hillside Enterprises, Hired Hands Inc. Homecare, Home & Health Care, Home Instead (2), Home Professionals, Homecare California, Homecare Consultants (2), Homecare Specialists (2), Independent Living Resource Center SF, Individual oppose (4), In-House Staffing, Innovative Healthcare Consultants (4), Kaweah Delta Home Care Services, La Jolla Nurses Homecare, Love to Live, Matched CareGivers (8), Medical Home Care Professionals (6), National Private Duty Association (2), Nursing & Rehab at Home, Option One, Oxford Services, PFC Information Services, Pioneer Home Health Care, Rent-a-Parent, Right at Home (4), Select Homecare, SENCARE Inc. (2), Senior Helpers (4), Silicon Valley Independent Living Center, Southwest Health Care Services, Inc., St. Joseph Health System Home Health Agency, Stanford Park Nannies, The Arc and United Cerebral Policy in California, Town and Country Resources, United Cerebral Palsy, Visiting Angels (11), Westside Nannies, 137-individuals


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