WAGE ORDER 15 THREAT!

CAHSAH just learned that on Friday, September 21st, Representative Lynn Woolsey, a Democrat of the 6th Congressional District, introduced HR 3582 to remove the companionship exemption for third party employers in the 50 states. In California, we refer to this exemption as the personal attendant exemption. Woolsey represents parts of the counties of Marin and Sonoma and the cities of Santa Rosa, Rohnert Park, Petaluma, Novato, San Rafael and Mill Valley.Specifically, HR 3582 would only allow the companionship exemption for “employees employed on a casual basis to provide companionship services.” As casual basis is defined, it specifically does NOT ALLOW “individuals employed by an agency” to be covered under the exemption. Therefore, home care aide organizations, will lose their overtime exemption for personal attendants in California.

This bill is a re-enactment of last year’s AB 2536 (Montanez), which was a California bill introduced last year to remove the exemption. CAHSAH was successful in defeating the legislation after an 8 month battle.

The same bill has been introduced as companion legislation in the US Senate by Senator Tom Harkin (D-Iowa) - S 2061. Presidential candidates Senators Barack Obama (D-Illinois), Hilary Clinton (D- New York) and Christopher Dodd (D-Connecticut) have all signed on to support the bill.
Woolsey put a quote on her website stating that the bill introduction is in direct response to the June 11, 2007 Supreme Court Decision, Long Island Care at Home, et al. v. Coke. Under this decision, the Supreme Court ruled in favor of seniors and providers to uphold the 1975 Labor Department regulation exempting home care companions from the overtime rules.

Woolsey states, “This exemption was enacted over three decades ago, when homecare, like babysitting, was largely provided by family and friends.” Woolsey goes on to indicate that the exemption was only put in place to allow family and friends to take care of their loved ones and not for organizations with employees with the comment, “Since that time the entire industry has undergone a transformation, and the laws simply haven’t kept up.”
However, we know these statements to be untrue for California. When the state examined wage and overtime laws and made numerous changes in 1990, California did not remove the overtime exemption for the personal attendant.Additionally, when the state originally adopted the exemption in California in 1986, they specifically implied that the exemption was put in place to create “employment under more stable conditions” and to have the attendants work for businesses “accustomed to normal payroll practices, such as paying employment taxes and keeping records”, that “private householder needing personal attendants often are unable to attend adequately to such matters, and that requiring overtime pay for third party employees would discourage employment under the more stable conditions.”