A New Bill in the California Legislature May Change the Way Working Parents Do Business
Many working parents, including myself, rely on babysitters to watch our children while we work. There is a new bill in the California legislature that may change the way many of us do business known as “the Babysitters’ Bill,” Assembly Bill 889, which will require employers to provide workers’ compensation benefits, rest and meal breaks and paid vacation time for all “domestic employees,” including babysitters, housekeepers, and caregivers.
Currently, babysitters hired directly by an individual or family are not subject to the standard overtime, meal and rest break regulations that govern hourly employees. Babysitters fall under the “personal attendant” exemption under California Wage Order 15-2001 §2J. “Personal attendant” is defined in section (I) of IWC Wage Order 15 as follows: “’Personal attendant’ includes baby sitters and means any person employed by a private householder or by any third party employer recognized in the health care industry to work in a private household to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of ‘personal attendant’ shall apply when no significant amount of work other than the foregoing is required.” Baby sitters employed by a private firm or agency are governed by general employment laws and do not fall under this exemption.
The “personal attendant” is not entitled to overtime compensation so long as general housekeeping duties performed do not exceed 20% of the weekly working time spent. Housekeeping duties include cleaning and cooking. Also, personal attendants such as baby sitters are exempt from rest and meal period breaks that are required for other household workers. California Wage Order 15-2001 §2J; See Department of Industrial Relations Interpretation of IWC Wage Order (Nov. 23 2005). Even though overtime and meal and rest period breaks do not apply, it should be noted that the state minimum wage covers all employees, including household workers.
However, AB 889 may change all this. Under AB 889, household “employers” (aka “parents”) who hire a baby sitter will be legally obligated to essentially hire a substitute caregiver every two hours to cover rest and meal breaks, in addition to workers’ compensation coverage, overtime pay, timecards and paycheck. The only exceptions in this bill are for family members used as babysitters or caregivers. Failure to abide by these provisions could result in legal action against the employer for cumulative penalties, attorneys’ fees and costs. The amount of litigation in this area will likely increase. Ultimately, the higher costs and risks of this bill will discourage families from hiring nannies and baby sitters and increase the use of daycares and other institutionalized care.
AB passed in both the Assembly and the Senate in August 2011, but never made it to the desk of Governor Jerry Brown because the Senate Appropriates Committee put it in the “suspense file.” The bill’s authors have another year to amend it for review at a later date.
