BILL NUMBER: AB 2536 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY AUGUST 28, 2006
PASSED THE SENATE AUGUST 23, 2006
AMENDED IN SENATE AUGUST 21, 2006
AMENDED IN SENATE AUGUST 7, 2006
AMENDED IN SENATE JUNE 26, 2006
AMENDED IN ASSEMBLY MAY 15, 2006
AMENDED IN ASSEMBLY APRIL 26, 2006
INTRODUCED BY Assembly Member Montanez
FEBRUARY 23, 2006
An act to amend Sections 500 and 510 of, and to add Section 1194.3
to, the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2536, Montanez Employment: minimum wage and overtime
compensation.
Existing law, with certain exceptions, establishes 8 hours as a
day's work and a 40-hour workweek, and requires payment of prescribed
overtime compensation for additional hours worked. A violation of
this provision is a misdemeanor.
This bill would provide that these overtime compensation
requirements shall apply, with certain exceptions, to a personal
attendant, as defined. By imposing additional requirements on
employers, the violation of which would be a misdemeanor, the bill
would impose a state-mandated local program.
Existing law authorizes the Labor Commissioner to investigate
employee complaints and to provide a hearing in any action to recover
wages, penalties, and other demands for compensation.
Existing law authorizes an employee to recover in a civil action
any unpaid balance of the full amount of minimum wages or overtime
compensation. Existing law authorizes the Department of Industrial
Relations and the Division of Labor Standards Enforcement, with or
without the consent of an affected employee, to commence and
prosecute a civil action to recover unpaid minimum wages or unpaid
overtime compensation.
Existing law entitles an employee, in any action under these
provisions to recover unpaid wages received less than the minimum
wage, to recover liquidated damages in an amount equal to the wages
unlawfully unpaid and interest on that amount. Existing law expressly
provides that this provision does not authorize recovery of
liquidated damages for failure to pay overtime compensation.
This bill would entitle a household worker, as defined, in any
action to recover unlawfully withheld wages or unpaid overtime
compensation under any of these provisions, to recover liquidated
damages in an amount equal to the unlawfully withheld wages or unpaid
overtime compensation plus interest on that amount.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 500 of the Labor Code is amended to read:
500. For purposes of this chapter, the following terms shall have
the following meanings:
(a) "Workday" and "day" mean any consecutive 24-hour period
commencing at the same time each calendar day.
(b) "Workweek" and "week" mean any seven consecutive days,
starting with the same calendar day each week. "Workweek" is a fixed
and regularly recurring period of 168 hours, seven consecutive
24-hour periods.
(c) "Alternative workweek schedule" means any regularly scheduled
workweek requiring an employee to work more than eight hours in a
24-hour period.
(d) "Personal attendant" means a babysitter, or any person
employed and paid by a private household or by a private third-party
employer to work in a private household to supervise, feed, or dress
a child or a person who by reason of advanced age, physical
disability, or mental disability needs supervision. The status of
personal attendant applies if no significant amount of work other
than that described in this subdivision is required. "Personal
attendant" does not include persons receiving payment for providing
services under Article 7 (commencing with Section 12300) of Chapter 3
of, or under Article 4 (commencing with Section 14131) of Chapter 7
of, Part 3 of Division 9 of the Welfare and Institutions Code.
(e) "Live-in household employee" means any person employed and
paid by a private household or by a private third-party employer to
work in a private household and who lives in the private household as
a condition of employment. "Live-in household employee" does not
include persons receiving payment for providing services under
Article 7 (commencing with Section 12300) of Chapter 3 of, or under
Article 4 (commencing with Section 14131) of Chapter 7 of, Part 3 of
Division 9 of the Welfare and Institutions Code.
SEC. 2. Section 510 of the Labor Code is amended to read:
510. (a) Eight hours of labor constitutes a day's work. Any work
in excess of eight hours in one workday and any work in excess of 40
hours in any one workweek and the first eight hours worked on the
seventh day of work in any one workweek shall be compensated at the
rate of no less than 11/2 times the regular rate of pay for an
employee. Any work in excess of 12 hours in one day shall be
compensated at the rate of no less than twice the regular rate of pay
for an employee. In addition, any work in excess of eight hours on
any seventh day of a workweek shall be compensated at the rate of no
less than twice the regular rate of pay of an employee. Nothing in
this section requires an employer to combine more than one rate of
overtime compensation in order to calculate the amount to be paid to
an employee for any hour of overtime work. This section does not
apply to the payment of overtime compensation to an employee working
pursuant to any of the following:
(1) An alternative workweek schedule adopted pursuant to Section
511.
(2) An alternative workweek schedule adopted pursuant to a
collective bargaining agreement pursuant to Section 514.
(3) An alternative workweek schedule to which this chapter is
inapplicable pursuant to Section 554.
(b) Time spent commuting to and from the first place at which an
employee's presence is required by the employer shall not be
considered to be a part of a day's work, when the employee commutes
in a vehicle that is owned, leased, or subsidized by the employer and
is used for the purpose of ridesharing, as defined in Section 522 of
the Vehicle Code.
(c) (1) Except as provided in paragraphs (2) and (3), this section
applies to a personal attendant, as that term is defined in Section
500. However, a live-in household employee who is also a personal
attendant shall be compensated in accordance with Section 3(A) of
Industrial Welfare Commission Wage Order 15.
(2) This section does not apply to a person under 18 years of age
who is employed as a babysitter for a minor child of the employer in
the employer's household and who may be declared a dependent pursuant
to Section 152(a) of the Internal Revenue Code.
(3) This section does not apply to a personal attendant who is a
person employed by a private household, or by a third-party employer,
to work in a private household to supervise, feed, or dress a person
who, by reason of advanced age, physical disability, or mental
disability, needs supervision.
(4) This section does not apply to an employee with direct
responsibility for a child who is under 18 years of age or who is not
emancipated from the foster care system and who, in either case, is
receiving 24-hour residential care from a licensed community care
facility.
(5) This section does not apply to a personal attendant providing
care for a child if the parent or guardian of the child receives
Child Care and Development Services pursuant to any program
authorized under the Child Care and Development Services Act (Chapter
2 (commencing with Section 8200) of Part 6 of the Education Code) or
the California Work Opportunity and Responsibility to Kids Act
(Chapter 2 (commencing with Section 11200) of Part 2 of Division 9 of
the Welfare and Institutions Code) and the care is provided in the
home of the child.
(d) This section does not affect, change, or limit an employer's
liability under the workers' compensation law.
SEC. 3. Section 1194.3 is added to the Labor Code, to read:
1194.3. (a) Notwithstanding Section 1194.2, in any action under
Section 98, 1193.6, or 1194 to recover unlawfully withheld wages or
unpaid overtime compensation, a household worker shall be entitled to
recover liquidated damages in an amount equal to the unlawfully
withheld wages or unpaid overtime compensation and interest on that
amount.
(b) For purposes of this section, "household worker" means an
employee providing services related to the care of persons or
maintenance of a private household or its premises. A "household
worker" shall include, but is not limited to, a butler, chauffeur,
companion, cook, day worker, gardener, graduate nurse, groom,
housecleaner, housekeeper, maid, practical nurse, tutor, valet, or
person in a similar occupation.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.