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California Babysitter Bill: Understanding A.B. 889

First Posted: 10/14/2011 4:25 pm EDT Updated: 03/06/2013 6:34 pm EST

LOS ANGELES -- Officially, Louisa Araneta* is a live-in caretaker for an elderly woman who needs help eating, bathing and getting dressed. Unofficially, she's also a servant to the woman's daughter and son-in-law, as well as their son with special needs.

Araneta, 68, gets paid $35 a day to clean the house, cook for the whole family and attend to her primary charge. And since one shift usually spans at least 10 hours of work, her per-hour take ends up well below California's $8.00 minimum wage standard.

Her most difficult shift is Saturday, when her employers go on their weekly trip to a local casino. On those mornings, Louisa's day starts as usual at 6 a.m., but lasts until 2 a.m. the next morning. Her role during these casino trips? Sit alongside her patient and watch her play the slot machines.

Araneta, who moved to California from the Philippines in April, reached out to the Pilipino Workers Center of Southern California about her situation. Advocates urged her to file a claim against her employers, but she refused, explaining to The Huffington Post, "I will just have to leave if I can't stand it any more, because I think that's a waste of time."

Araneta's assessment isn't far from the truth. Her employers' egregious violation of the minimum wage law goes without saying. But under California law, if Araneta spends under 20 percent of her time on housekeeping, her employers are not responsible for paying her overtime. Nor are they liable for making sure she has clearly defined break periods or eight full hours of uninterrupted sleep every night.

If Araneta were spending more than 20 percent of her time on housekeeping, she would be entitled to these rights. That's an arbitrary distinction that needs to change, domestic worker advocates throughout the state say.

THE 'BABYSITTER BILL'

An assembly bill introduced in February of this year sought to protect Louisa -- along with thousands of other personal attendants like her -- with provisions like overtime pay, rest breaks and the right to sue her employer if those conditions were violated. A.B. 889 became known and derided as the "Babysitter Bill."

While it was passed in both the assembly and the Senate, A.B. 889 never made it to the desk of Gov. Jerry Brown (D) because the Senate Appropriates Committee put it in the "suspense file." A.B. 889 isn't dead, but its suspension means that personal attendants like Araneta still have almost nowhere to turn when employers take advantage of their time. The bill's authors have another year to amend it for review at a later date.

This August, when the bill had passed the assembly and was poised to do the same in the Senate, Sen. Doug LaMalfa (R-Richvale) conjectured that the bill would be a job killer for domestic workers, shifting care work to institutions. As explained in his op-ed, "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. I can't help but wonder if that is the goal of A.B. 889 -- a terrible bill that needs to be stopped."

Many news outlets implied that the measure would open the floodgates to a set of unsavory consequences. Opponents argued that the legislation would force parents to hire two caregivers to cover each others' meal breaks, overexpose families to legal action over workplace violations, and prevent the casual hiring of babysitters for an occasional date night.

But these depictions are a distortion of both the intent and the effect of the bill, said Marci Seville, a professor at the Golden Gate University School of Law and the director of the school's Women's Employment Rights Clinic.

According to Seville, the outrage over meal and rest breaks was overblown. "Nobody's saying that they're going to abandon a child or a sick person [in order to eat lunch off-premises]," she told The Huffington Post. "If you don't get your meal break, you get an extra hour of pay." Alternately, the bill proposes that if the nature of the work doesn't allow for an off-duty mealtime, an employee and employer can agree in writing to an on-duty one.

Seville, who has both represented domestic workers at her clinic and hired them for her own family, underscores how crucial their role is to California's economy. "Domestic workers do the work that makes all other work possible," she said. "Without domestic workers to clean homes and care for children and elders, the doctors, lawyers, business people, legislators and others would not be able to do their work."

Nikki Brown-Booker, who also employs personal attendants, echoed Seville's sentiments. A 45-year-old psychotherapist who works in Berkeley and Oakland, Brown-Booker has a physical disability and employs six different personal attendants a week to help her get ready for work, cook her food and clean the house.

"I've had attendants since I was 18 years old when I first went away to college," she said. "I hadn't even had my own first job," she explains, "and there wasn't really anything to help me deal with issues around pay, leave, vacation or how to even fill out time sheets." She said that there weren't any resources out there that explained how to treat her personal attendants in a simple and succinct way, which meant that she had to make it up as she went along.

Brown-Booker believes employers desperately need a bill like A.B. 889 to pass. The measure's provisions force employers to look ahead and plan for contingencies like a worker's sick day or vacation day. In essence, she said, it’s "an opportunity to teach employers how to be good employers."

"I WILL SUFFER IN SILENCE"

Isolation and vulnerability are hallmarks of the industry, especially for immigrant women who speak English as a second language. Since most work alone, scattered across residences all over California, domestic workers aren't easy to educate or mobilize en masse.

"We can't unionize these people because there is no big employer to organize against," said Victor Narro, project director for the UCLA Labor Center.

Instead, Narro explained to The Huffington Post, "what we can do is legislate protections." New York's Domestic Workers Bill of Rights, signed into law in August 2010, serves as the basis for California's A.B. 889.

Ironically, one factor impeding A.B. 889’s implementation is the fact that too many workers would benefit from the bill. According to the Senate Appropriation Committee's analysis, the personal attendant industry's labor violations are already so rampant that the state would be flooded with a "major increase in claims" that would necessitate the hiring of at least five new investigators to manage the caseload. The committee also estimated it would cost $385,000 to hire new staffers, and that's just too much to pay in the midst of California's budget crisis.

In an attempt to escape the domestic worker world, Araneta took a free computer course at the senior center, learning how to create an email account and write resumes to send to prospective employers. But, like millions of unemployed Americans have already discovered, "unfortunately, when you send a resume, they usually don't reply," she said.

"If I can find a better-paying job and a good employer, I'll leave," Araneta continued. "But right now, since I am a realistic person, I will suffer in silence."

*Araneta's name has been changed to protect her identity.

UPDATE: Additional details have been redacted to protect the anonymity of Louisa Araneta.

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