California’s Nanny State Nanny Law

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Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.

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98 Responses

  1. Avatar Tod Kelly says:

    Tim, I want to respond to this in more detail when I am at a computer and can better absorb your post, but at first blush the question you ask about how we even know that caregivers’ low income, education and (I am guessing here) legal status are not being abused are in the very requirements you highlight. Caregivers should be allowed to eat evey five hours? They should not be made to work more than 12 consecutive hours? They should be allowed to be able to sleep for 8 hours?

    This law may or may not be so great, but I find it bizarre that you are choosing these low standards to decry how spoiled the people we pay to look after out kids so we don’t have to are these days.Report

    • Avatar Tim Kowal in reply to Tod Kelly says:

      Tod,

      I’ll let you review and respond more fully as you indicated, but I think your “first blush” may have slightly misunderstood the law. The law does not simply provide that sitters “be allowed to eat every five hours.” It requires that they have an uninterrupted 30 minutes in which to eat. Nannies already understand that by the very nature of their jobs, they eat and take breaks when they can get it—e.g., when the kids nap or eat. Same goes for sleep and personal time for full-time, live-in nannies. The very nature of the job is fluid. A law forbidding nannies to help out in nighttime duties basically makes it pointless to have a full-time live-in nanny, as far as I can tell.Report

      • Avatar Tod Kelly in reply to Tim Kowal says:

        Tim, rereading this I am still not sure that I get the outrage. There are certain things that don’t seem logical, like the uninterrupted sleep issue that you just brought up.

        For the most part, though, it seems like you’re objecting to things being implemented that seem like should have been there all along. You’re an attorney, so you know as well as I do that if you hire someone, they work for you and you alone as their sole means of support than you are their employer – whether or not you want to call yourself anything else. I’m not seeing a lot here that isn’t the very lowest standards of what you are allowed to do/get away with to an employee. If this is the system that upper middle class and the upper class families rely on to take care of their children, then I’m having a hard time finding sympathy for keeping that system intact.

        These are people we’re paying to look after our children so we don’t have to, and we’re feeling put out that we might have to pay them a living wage, or let them eat, or pay into the workers comp system in case they get injured doing the day to day tasks we can’t be bothered with doing? (And I am assuming they need workers comp, ‘cause if we aren’t paying them minimum wage they sure as hell don’t have health insurance.)

        Usually when I hear liberals use classism as a way to disparage conservatives it comes across as background noise, but in this case even I am having a hard time not going a little Madame Defarge. “We let these people into our homes, and they expect to earn minimum wage? And they really expect me to let them eat once every five hours? No wonder they’re so poor and can’t speak English! And wait, if they injure themselves doing what I tell them to do I’m responsible for their lost wages and care? But that’s not fair, I can replace them with another one so easily! Who knew parenting was such a trial? If this continues I’m going to be forced to bring young Brittany and Dakota to Vale with me and spend time with them as well!”

        I’d have an easier time getting behind you if you spent time focusing solely on those parts of the bill that create logistical issues for the industry as a whole. Objecting to most of this stuff makes we want to march for nannies’ rights.Report

        • Avatar Tim Kowal in reply to Tod Kelly says:

          Tod,

          I wonder if you could be specific and tell me what about the law “should have been there all along.” I also wonder whether you read the last two paragraphs of the post, wherein I acknowledge that employers ought to treat employees according to some minimum standard, but that until there is established some pattern that this standard is being routinely violated, there is probably no good reason for the law to get involved. Do you disagree with this? Can you propose an alternative limiting principle?Report

          • Avatar Tod Kelly in reply to Tim Kowal says:

            Things I think should have been there all along include minimum wage, workers comp, and taxes. These things are also my answer for minimum standard for your employees.

            I agree with this: “I acknowledge that employers ought to treat employees according to some minimum standard, but that until there is established some pattern that this standard is being routinely violated, there is probably no good reason for the law to get involved” I am, however, working under the assumption that if the “minimum standard” items I mentioned above (which should already be required, shouldn’t they?) are sticking points for you and others that they don’t currently exist in practice. If I’m wrong – if it turns out that these people are already getting minimum wage or better, and being paid into the workers comp system as well as SS & FICA, then I see no reason for the law – it does indeed seem superfluous. But again, the fact that these seem to be objections by you and others suggest to me that these things aren’t happening.

            In short, to answer your limiting principle question: If we have already agreed as a society that we all have certain minimum standards to legally expect as employees, the limiting principle should be that we stick to those across the board, and not trashcan them when they get in the way of us being able to afford luxury items like full time nannies. Do you agree with *that*?Report

            • Avatar Tim Kowal in reply to Tod Kelly says:

              Seems we are diverging on the full-time/part-time issue. Do we agree the part-time babysitter part of the law is silly? It does seem that some of the provisions that would apply to full-time nannies may be redundant—i.e., state law would already mandate minimum wage, tax withholdings, and workers comp. So no, I have no particular objections to that extent. I do think the “uninterrupted” sleep and personal time is quite silly and unnecessary. I’d be curious to know if there’s actually some real systemic problem here.Report

              • Avatar Tod Kelly in reply to Tim Kowal says:

                As I said earlier, the parts of the law that seem counter-intuitive to the industry functioning – and the uninterrupted sleep issue is a pretty big one here – seem weird, and I wonder to what extent a law is being created to fix a small problem, or no problem at all.

                I am on board with you on the full time/ part time issues as well.

                I suspect that there are systemic problems with the bigger, more standard employment related issues like taxes and workers comp. If I am right, I doubt they exist because of malice, but rather it’s an old, old system that has always worked like that. Also, I think people reflexively (and quite understandably) equate the responsibilities with hiring a guy to come clear your gutters for an hour twice a year to hiring someone to work 40 hours or more in your home. In my job, I have had the conversation with a lot of people who insist that because they call someone a contractor they have no employer responsibilities for someone that works for them full time under their supervision; and if people have that hard a time getting that straight as an employer, I can’t believe they don’t have a harder time recognizing their responsibilities as a citizen that believes they are just being a consumer.Report

  2. Avatar Jakecollins says:

    Shorter TK
    Caregivers are just uneducated c***s, so of course they don’t deserve minimum wage or worker protection laws.Report

  3. Avatar Jaybird says:

    Question for the grown-ups out there with kids:

    What’s the going rate for a sitter?Report

    • Avatar Tod Kelly in reply to Jaybird says:

      We haven’t had to do it for a a couple of years due to our inability to stop our boys from aging, but a while ago it was $10 an hour plus a share of the pizza. Sometimes we would have to pay more as our stable of sitters got to the point where they could drive and date, and babysitting became a less attractive way to spend a Saturday night.Report

      • Avatar wardsmith in reply to Tod Kelly says:

        And Tod, given your sentiments above, did you pay into your sitter’s federal social security, medicare, medicaid and contribute to the state’s unemployment and worker’s comp on their behalf? Did you set up a nice 401K for them while you were at it? If you ever paid a sitter more than $600 in a year, did you supply them (and the IRS) with a 1099 form as required by law already? Did you train your sitter in OSHA approved methods for picking up children and moving objects around your home? If they ever drove your children anywhere did you add the requisite insurance riders as required by law?

        Does any of this turn anyone else’s stomach?

        Unlike the majority of posters on this site, I’ve run businesses, unlike our President, I’ve actually signed the FRONT of a paycheck and have for decades complied with a never ending and always growing pile of BS rules and regulations for having the audacity to believe that I have the right to have another human being work for me. The endgame of course is that if this continues there will be no such thing, just massive unemployment and a few lucky souls fortunate enough to get a government job. How that government affords to pay them? Easy, just ask any liberal, you only print more money cost free.Report

        • Avatar Tod Kelly in reply to wardsmith says:

          @wardsmith:”And Tod, given your sentiments above, did you pay into your sitter’s federal social security, medicare, medicaid and contribute to the state’s unemployment and worker’s comp on their behalf?”

          No, but my babysitters were 14-16 years old, and had all of their living expenses and health insurance covered by their parents. Nor do I demand that the neighborhood 5 year old get a zoning permit for her Kool-Aid stand. I’m not sure that these are comparable to what I was saying above.

          I *am* a partner in my business, though admittedly I am not in charge of signing paychecks. Be that as it may, I don’t think of this as an all or nothing battle like you do. I believe that I need to pay my staff a living wage, and be responsible for them if they are injured on the job carrying out my instructions. I do not believe I need to pay wages and benefits to my son when he joins me for Bring Your Kid To Work Day. I don’t find making that distinction intellectually dishonest.Report

          • Avatar Will Truman in reply to Tod Kelly says:

            To what extent should you be able to hire a 14 year old baby-sitter, though? To me, that gets to the crux of what we’re talking about here. Historically, part-time babysitting has had space for a mutual benefit sort of thing, rather than strictly falling under the category of child labor laws, taxes, and so on.

            Abstractly, this is very much like a lemonade stand. Most of us would agree that restaurants should have sanitation requirements to at least some extent, and that street vendors should have licenses and sales taxes. But the repercussions of all of this in some cases, and in some circumstances, makes most of us shake our collective heads.

            And I think that’s why this rubs people the wrong way. There is a time for institutional regulation, and a time for flexibility. While I don’t disagree with you that criticisms of this law are overly broad (I don’t think it’s unreasonable to demand minimum wage, for instance), I full-well understand the pushback here beyond a few sloppy parts of the law*. So where do you draw the line? I think the historic full-time/part-time is a good place to start. But it seems to be that the aim here is to erase that distinction.

            * – Of which includes the mealbreak provision. It’s one thing to say that they need to have the opportunity to eat once every five hours. But it’s quite another to say that they should get a full-on break where they can leave the kid alone and force the parents to come up with some half-hour provision. Making it so that the sitter has to be paid during their meal if they can’t leave is fair, but that distinction *seems* to be lost here.Report

            • Avatar Tod Kelly in reply to Will Truman says:

              Again, I don’t find these discrepancies intellectually dishonest.

              I get that there are silly laws taken to extremes – the recent lemonade stand hubbub being a great example. But I think you can be against those laws, AND be in favor of people having to pay minimum wage and taxes and workers comp on people they hire.

              And I think hiring the 14 year old is a good thing, for all kinds of reasons – both communal and personal. Which is why, I suspect, this law very specifically doesn’t address that kind of sitter.Report

              • Avatar Will Truman in reply to Tod Kelly says:

                Oh, to be clear, I wasn’t at all accusing you of intellectual dishonesty. I’m not positive that we’re in disagreement, except for the meal-break thing.

                I would be more comfortable with this law if I saw some sort of bright line between this and that. Full-time and part-time strikes me as a pretty good one, but this appears to set the line at over 18 or under 18 (and family members or not). It doesn’t seem to draw the line between “babysitter” and “nanny” (unless the OCR is misrepresenting it).Report

    • Avatar wardsmith in reply to Jaybird says:

      Where I live you can’t get a sitter for less than $10 per hour. But my kids are long grown, this is just from what friends have told me for their kids. Meanwhile I have neighbors with au pair’s who actually have to get “pairs” of them. The 2 yr old twins get a different nanny than the 11 yr olds because no single nanny would agree to watching both sets. Expensive having children no?Report

      • Avatar Scott in reply to wardsmith says:

        It is expensive unless you are on public assistance and then the gov’t pays you to breed.Report

        • So are the sorts of job protections we’re discussing. I don’t begrudge people eight dollars an hour, of course, for the same reason I don’t begrudge people refrigerators, air conditioning, and TV sets. Because we live in the first world. But if we’re going to dismiss the concerns of Americans because we all have it so much better than people in the third world, that’s a pretty wide net.Report

          • Dismissing some of the concerns of a very privileged set of Americans? Yes, I admit I feel free to dismiss away. Having such an abundance of privilege that one is frustrated by au pairs refusing to care for two children and insist on doubling up compared to inadequate enforcement of minimum wage laws. The differences in class, power, and vulnerability are so utterly overwhelming. Patterns of abuse of migrant workers and the working poor, sadly, are not so dissimilar across the developed and developing world.Report

            • Compared to the third world, the vast, vast majority of Americans are pretty privileged. That’s why I’m not sure you want to go there. It wasn’t but a few weeks ago we had a discussion where some argued that the poor aren’t really poor because, hey, look at the third world (or 75 years ago)!Report

              • I think you take the “first world” in the “first world problems” meme to be overinclusive. I understand you may have read my comment in light of the previous discussion about the poor in America supposedly not having it so bad, because hey, they have TVs. I assure you I wouldn’t be on the “Joe Sixpack has got a fridge so everything’s fine”, side of that debate.

                In both the satirical videos (here) the set of instances are aimed at the elite in particular. Look at the lyrics (from the second video),

                Misplaced the Ambien (first world problem)
                Left a participle dangling (first world problem)
                You’re scheduling your root canal (first world problem)
                Your grad schooling had no rationale (first world problem)
                You didn’t like your appetizer (first world problem)
                Your yacht got capsized (a first world problem)

                I’d argue minimum wage, job protections, and the freedom from abuse from your employer can’t be reasonably classed as first world problem because people experience the detrimental impacts in similar ways in both the first and third world – with capability deprived people’s experiences being particularly similar in both the first and third world. The issue of abuse of employees does not manifest itself in precisely the same way, but it remains abuse by the more empowered of the more vulnerable.

                Now compare that employer-employee power imbalance to the angst of the couple who has to hire two au pairs having been rejected by au pairs who decline to care for so many children at once (neither here nor there, but I got the numbers wrong in my 9:18 comment, twins and at least one 11 year old). In both the first and third world, this is a problem limited to the elite. It seems to fit well with the capsized yatch. Unfortunate to be sure, but I won’t be alerting Human Rights Watch about it.Report

    • Avatar Tod Kelly in reply to Jaybird says:

      @Jaybird: “What’s the going rate for a sitter?”

      Also, curious: Are you wondering in relation to Tim’s post, or are you trying to figure out if you and Maribou are being taken by the 14 year old across the street?Report

      • Avatar Jaybird in reply to Tod Kelly says:

        We have no children. We have cats and it costs an arm and a leg to have them boarded. We haven’t left the house for a vacation together since we got the 4th one. We are now separate vacation people.

        Which suits me fine because I’m very much a “staycation” kinda guy and she’s a “let’s go to (somewhere that isn’t home)” kinda gal.

        I was asking because I was wondering if there is anyone out there who pays less than minimum wage for a sitter.

        My suspicion is that, if there are folks who do, they are the folks who do that because it is all they can afford and they probably have babysitting co-ops where everybody looks after everybody’s kids in exchange for some form of barter.

        I also suspect that folks like “us” (privileged folks) who get babysitters do so to help us go on more dates, see more movies, go out to more restaurants, or otherwise enjoy more leisure (we have friends who got a babysitter to watch the kid on the main floor while we played board games in the basement… that kid got $10/hr too).

        The folks who fall under the umbrella of this particular law are the folks who are poor and need babysitters while they go to their jobs, or to night school, or something.

        The law is passed with the best of intentions to protect the babysitters who sit for white people.

        It will (screw) over brown people.Report

        • Avatar Tod Kelly in reply to Jaybird says:

          I’m not so sure you are correct. It is my understanding that this law is for nannies, which are hired to work for a single family. Day care centers have long been required to do all of the things that Tim discusses here.

          Also, fishing A on the cats. We boarded our cat’s when we went on vacation just now, because they’re kittens and we were afraid what kind out state our house would be when we got back. I grew up in a time where people just gave away extra cats from new litters in front of Safeway, and no one ever took them to the vet, and you just left more food out for them when you traveled. I didn’t even think to ask before hand how much it would cost. Yikes! The bill was shocking.Report

    • Avatar Patrick Cahalan in reply to Jaybird says:

      In my neck of the woods, those people who pay under the table typically pay $15-$25 an hour, depending upon the number of children they have, how crazy those kids can be to manage, and a number of other factors including whether or not the nanny can drive, has first aid training, etc.

      Over-the-table pays roughly the same rate, but you have to deal with withholding and workers comp (this part is already true).

      When we paid the nanny, most of Kitty’s not-inconsiderable part time salary went straight to providing daycare. Essentially she was working just to keep her working resume from having a giant block of “unemployed” in it.

      I would expect that over-the-table single caregivers will not be able to find a job if this passes; everyone will start hiring under-the-table workers just to avoid the hassle.Report

  4. Avatar Scott says:

    And we wonder why CA has low employment levels. Keep it up CA and hopefully the state will collapse.

    http://mobile.bloomberg.com/news/2011-09-04/california-employment-level-sinks-to-record-low-as-fewer-women-find-jobs.htmlReport

  5. Can’t legislatures address multiple issues at once? Why shouldn’t the legislature spend time on the exploitative circumstances of some domestic workers, or is their issue not “worthy” enough? As for the specifics of the legislation, perhaps this initial proposal is disproportionately punitive, but I’d say it is certainly an area that deserves attention. The Summers piece at Reason trots out the old libertarian saw of voluntary exchange, as though the voluntaristic nature of an exchange necessarily undercuts the potential for exploitation – both at a micro-level between individual employee and employer, and at a macro-level, larger structures that advantage and disadvantage groups. Working conditions can fall below a certain humane floor due to imbalances of information, employees being unaware of their rights and working 14 hour days without due compensation..

    Overall I see the proposed law as an effort to shore up the vulnerable position of the employee, perhaps in this particular iteration heavy-handed, but certainly worth the effort. Part of the reason I’m unimpressed by this dismissive take on the issue is that this is a live concern in the international human rights advocacy context, migrant workers as domestics with wealthier, more powerful families, and the ensuing mistreatment (as one subset of the vulnerabilities of migrants in general). It is not at all surprising to me that a similar dynamic can crop up in America.Report

    • Avatar Patrick Cahalan in reply to Creon Critic says:

      In my experience, no paid caregiver who works as an independent contractor is in a vulnerable position. Quite the opposite.

      Live-in caretakers of invalids might be, I have no frame of reference.Report

      • My understanding is the law seeks to protect domestic employees more generally and given the differences between employer and employee in this circumstance, social capital, class, etc., it is not difficult to imagine abuse. Take the article I linked to, the employee, was “a naturalized citizen from El Salvador who speaks limited English, had few witnesses and little documentation”. Her employers by contrast had their home listed for sale at $17.9 million, the president of a company and a partner in a financial planning business. Who were the stronger parties in that relationship? What potential abuses can crop up? If I have my math right, they were paying the employee at most $13,000 a year for four years (“Serralta had been seeking $259,000 in unpaid wages, overtime, penalties and interest – more than five times her total salary for four years.”).Report

        • Avatar Patrick Cahalan in reply to Creon Critic says:

          Outliers certainly exist, of course.

          After all, if you don’t really give a damn about your children, you might pay your nanny really poorly and have a disgruntled person taking care of your children on a routine basis. Nobody I know does this. I’m certain that it does happen, but I imagine it’s pretty rare.

          In the general case, the converse is true: if you have a good nanny, you will generally bust your freakin’ hind end off to keep her (or him). You will be very accommodating. You will pay them their normal wage when you go on vacation. They will have basically equal bargaining power for things like time off, working conditions, access to amenities, etc.

          Because they’re watching your kids.

          I’m just saying, this is definitely a case where anecdote != data.

          I’m not convinced we need a regulatory framework to cover the off-case where a rich asshole that doesn’t really care about their kids enough to pay their nanny a decent wage is in an abusive power relationship with their employee.Report

          • Regarding outliers, well, “if all men were angels there would be no need for government”. AB 889 may not do it ideally, but it aims for the abusive relationships. If its targeting is imperfect, I’d be in favor of tweaking it to better get at the abuses. Tim and I discuss the case studies, particularly the Human Rights Watch report I mention downthread. As I say below, “I’m quoting the [case studies] to illustrate a larger point about the power dynamics at play and the possible range of abuses that can occur.” As I ask, even further downthread, doesn’t the regulatory framework clarify the employer-employee relationship? The conscientious will go on being conscientious, as you observe, because the nanny is watching your kids. But, in part, we’re discussing victimizers and what we can do to highlight their aberrant behavior.Report

    • Avatar wardsmith in reply to Creon Critic says:

      This smacks of Meg Whitman’s run for governor – deja vu all over again. Police aren’t going to be enforcing this law, ambulance chasing lawyers will, in abundance. I can see them interviewing domestic help now, looking for deep pockets to pick.

      I personally don’t believe someone works non-stop for 14 hrs per day (except for yours truly who works for himself). I don’t (and won’t) have a maid, but have observed the ones who work in my neighborhood. Admittedly they aren’t live-ins but I’ve seen them out on the back deck having “the massa’s” martinis while the massa’s away. One came home while her maid was passed out. She put her to bed in the guest bedroom to sleep it off. Nope never fired her either, said she was just “having issues”. No duh there.

      With this new law, many who might otherwise have been productive members of the economy creating multiplier effects in the millions of dollars and all the employment that entails will stay home instead because small laws have big impacts. That woman, who runs a bakery and employs 40+ because she can afford to hire a maid will now stay home instead and those 40+the maid will now be unemployed.

      Like all swords this one cuts both ways.Report

  6. Avatar Tim Kowal says:

    Is that all? Do you also mean this should apply to part-time babysitters who sit for a few hours on a Saturday night? Once the law is involved even to the extent you’ve indicated, there arises the need for the detailed reporting requirements, posting of notices, attorneys’ fees, rebuttable presumptions, and mandatory fines and penalties that AB 889 would impose. Are you signing on to these corollaries to government intrusion in such modest economic activity? Or do you contend AB 889 somehow goes too far?Report

    • I’d use as my starting point the ILO’s Domestic Workers Convention (ILO Convention 189 pdf). Honestly, I’d like to see several options for the US incorporating the Convention. Given an option that is more flexible than AB 889, while still protecting domestic workers, I’d favor that. I don’t have a problem with the law recognizing distinctions between different contexts, part-time/full-time.

      My understanding of your final paragraphs is that you prefer a higher bar to having rules in this domestic worker area at all, calling on prospective regulators to demonstrate a pattern of abuse. Given the power dynamics, I think it is perfectly reasonable to set standards and devote resources to enforcing them. (Maybe my one concession to the outlook represented here is adding the word “proportionate” to that last sentence, but that might also be question begging since we’re discussing what constitutes proportionate.)Report

  7. Avatar Ken says:

    We pay a college student $15 per hour to baby sit on date night, perhaps twice per month.

    Arrange workers’ comp? Arrange someone to relieve her every two hours? (Try dinner and a movie in two hours.) Create detailed wage statements? Hire her under a complex scheme of regulation, when she can sue us and her lawyer can get attorney fees if we miss anything?

    Not going to happen. We’ll hire an under-18 teen for $10 per hour, or less, or not go out at all. It will be a cold day in Hell when I I give a dime to the scumbag rent-seeking sitter/nanny agencies that lobbied for this.Report

  8. Avatar James K says:

    That’s a hell of a lot of red tape for casual employment. Don’t they have independent contractor rules in California?Report

    • Avatar Tim Kowal in reply to James K says:

      They do, but the law declares babysitters and nannies employees, not contractors. Even without the law, agency principles probably lead to the same conclusion: people who take care of children cannot be said to have much autonomy over the care they provide—they are under the control and direction of the parents.Report

      • Avatar James K in reply to Tim Kowal says:

        That’s interesting, I’m not an expert on employment law, but down here the regularity of employment is also a big deal, so the full time nanny would be an employee, but if you’re hiring casually it would be pretty simple to argue they’re a contractor.Report

        • Avatar Tim Kowal in reply to James K says:

          It’s not my area of expertise either, and I started second guessing myself even as I wrote the last comment. I did a quick search, and it looks like casual babysitters at least could be considered independent contractors. Again, AB 889 would apparently change that here in California.Report

  9. Avatar Katherine says:

    I agree with the minimum-wage provision, and the paid overtime and workers’ comp insurance, and I find it disturbing that Tim finds those so highly objectionable – they’re simply giving childcare workers the same protections as any other employee. Ditto for the English-and-Spanish provision of labour rights information. (And, to be appropriately offensive, I see that Tim posted this on Labour Day.)

    I agree that yes, the requirement for a great deal of paperwork, and for breaks of a specific length of time, just doesn’t fit with childcare. I’m sure it’s not the intention of the authors of the bill to make everyone hire two babysitters at a time; it just seems well-intentioned and poorly thought-through. And there should be SOME stipulations with regard to time off. They should be guaranteed time to eat a meal – unless they’re caring for infants, they would generally eat when the kids do – and that if they’re up most of the night with a crying baby, they should have compensatory time off the next day. If the law was constructed with a little more flexibility, it would be a good one.Report

    • Avatar Kolohe in reply to Katherine says:

      “(And, to be appropriately offensive, I see that Tim posted this on Labour Day.)”

      I make it a point now on Easter to dress like Rory Williams.Report

    • Avatar James K in reply to Katherine says:

      I’m sure it’s not the intention of the authors of the bill to make everyone hire two babysitters at a time; it just seems well-intentioned and poorly thought-through.

      In that sentence you just described every bad piece of legislation ever written, or very close to it.Report

    • Avatar Will Truman in reply to Katherine says:

      Katherine, I agree with just about every word of this. I’m personally not opposed to closing some gaps if abuse is really happening. My main objection falls into two categories:

      1) There doesn’t seem to be any clear distinction between a periodic babysitter and an ongoing nanny.

      2) It’s not as flexible as it should be as it pertains to breaks and whatnot. Requiring that mealtime be “on the clock” because they can’t leave the house strikes me as reasonable. Requiring that it be a free break and they be allowed to leave the house strikes me as problematic.Report

      • Avatar Katherine in reply to Will Truman says:

        Yes. If you’re going to do a lunch provision, just say that they get paid an extra half-hour (eg, 8 1/2 hours for an 8-hour workday) to cover lunchtime. Given that they’re in a house and presumably fixing meals for the kids, a reasonable employer would just let them use food from the fridge for their meals.Report

        • Avatar Tim Kowal in reply to Katherine says:

          Right. But recall the function of the law here. As I suspected in the closing paragraphs of the post, no one actually believes there is any widespread abuse of nannies or babysitters. And although no one has directly said so, I further suspect the reason anyone supports the law is not because there is a likelihood that nannies/babysitters are being abused, but rather because folks simply do not want to tolerate even the possibility that a nanny/babysitter might be taken advantage of. But in order to provide a legal guarantee against such a possibility, the law must presume that every parent who would employ a nanny or babysitter is an opportunistic wretch who deserves no discretion in how to fashion the schedules or pay of their nannies/babysitters.

          So the presumption and purpose of the law are inconsistent. This is why the law seems problematic even to those of you who like the idea of providing guarantees to nannies and babysitters. If we insist on correcting relationships that are not in demonstrable need of correction, we are left principally with an odious intrusion into our legitimate economic affairs. Again, this is why I asserted that this law makes no sense in the absence of some demonstrable pattern of abuse in the way parents treat nannies/babysitters.Report

          • Avatar Will Truman in reply to Tim Kowal says:

            A big part of the question is whether abuse is occurring or how widespread it is. If the assumption is that there is widespread abuse, a lot of these rules make sense in theory. If the assumption is that there is not, there isn’t much need to do anything.

            Creon seems to be resting on one assumption at least partially because *of course* mistreatment occurs with these kind of power differentials. You rest on the other assumption because, well, we haven’t heard a whole lot of testimonials of abuse.Report

          • Is abuse occurring? Yes. How widespread is it? Difficult to say. This report is ten years old and focuses only on a subset of the workers we’re discussing, but it has bearing on the kind of power relationship involved here, Hidden in the Home: Abuse of Domestic Workers with Special Visas in the United States. I don’t want to copy and paste giant chunks from the “Case Studies” section, suffice it to say abuse of domestic workers is not just an imagining of overzealous human rights advocates.

            Finally, I’d add that most of the commenters more favorably disposed to this law here have included caveats, I said perhaps disproportionately punitive and heavy handed, Katherine wrote of needing more flexibility, Tod Kelly wrote about focusing on the logistical issues… There is a version of this post that I could nod approvingly to, removing onerous red-tape as Tod Kelly comments would be all to the good. But the idea that the gaze of the state should not be drawn until widespread abuse is demonstrated strikes me as unsatisfactory.Report

            • the idea that the gaze of the state should not be drawn until widespread abuse is demonstrated strikes me as unsatisfactory.

              Why? I’ve asserted that these kinds of laws are going to be necessarily clumsy and relatively inflexible in the ways many have acknowledged here. So why should we have them if there’s is not a serious need?

              I’ll take a look at your links when I’m back to a computer, but keep in mind that for serious though relatively infrequent abuses there is always recourse in the courts.Report

              • Your first “why” is easier to answer than the second. I think Will Truman’s 5:10 reply gets at this first why. It’s the difference between imagining the benign gaze of the state, regulations setting standards so everyone knows the rules and the vulnerable are protected, or imagining the withering gaze of the state, regulations hampering free commerce and liberty. Since we’re traveling up the ladder of abstraction, I can’t help but also cite the capabilities approach and the more expansive vision of human rights (including social and economic rights) in explaining why, even absent demonstration of abuse now, the state should monitor this area.

                Your second why, why should we have them if there’s is not a serious need? seems question begging in the way that if I rely on the word “proportionate” I’d be bracketing precisely the question at hand. If there is no serious need then I agree, we should not legislate, but part of the dispute is the threshold of “serious need”.Report

              • Again, I don’t know what evidence of alleged abuse was considered, if any. Scanning the table of contents of the 2001 article you linked concerning migrant workers, I see headings entitled “Assault and Battery,” “Psychological Abuse,” “Servitude, Forced Labor, and Trafficking in Persons,” “Sexual Harassment,” etc. AB 889 is not aimed at any such grievous violations. Certainly, sharing lunchtime with the kids or waiting for li’l Tommy’s naptime before having that smoke is not exactly “forced labor” or “psychological abuse.” Otherwise, we’re attempting to polish our social and economic policy at an absurdly fine grit.

                At any rate, sure, assault and battery would be serious need in my book. So would human trafficking or any of those other horribles. Receiving less than 8 hours uninterrupted beauty rest doesn’t even begin to get us near the threshold, wherever it is.Report

              • The requirements I saw in one explanation of AB 889 and then quoting the Human Rights Watch report:

                Requirement of AB 889: Overtime after eight hours a day or 40 hour workweek

                Human Rights Watch: Human Rights Watch reviewed forty cases to determine the median hourly wage received by domestic workers for their labors, which with little variation included those duties enumerated by Jamisola. Using the median workday of fourteen hours and the median work week of six days and taking into account allowable standard deductions for room and board calculated based on the median applicable federal hourly minimum wage of $5.15, domestic workers’ median hourly wage was $2.14-only forty-two percent of the minimum hourly wage. [footnotes ommitted]

                Requirement: On duty for more than 24 consecutive hours then 8 hours consecutive off duty

                HRW: Jamisola alleged that her employer complied with none of the promised contract terms. She described to Human Rights Watch her typical workweek. Monday through Friday, she awoke at 6:30 AM to prepare the couple’s three children-then aged six, nine, and thirteen-for the day. Between 6:30 AM and 8:00 AM, when the last child left for school, she was required to make each child a different breakfast. From 8:00 AM until 3:00 PM, she cleaned the house-washing dishes, doing laundry, washing dry-cleaning by hand, making beds, dusting, and vacuuming. At 3:00 PM, the youngest girl returned home from school, and Jamisola took her to “play dates.” She then prepared dinner, set the table, cleared the table, cleaned the kitchen, and washed the dishes. Though she prepared the food, she told Human Rights Watch that she was only allowed to eat a limited amount, as her employer “put the portion on the plate for me. I couldn’t help myself.” Between 9:00 PM and 10:00 PM, she put the three children to bed. If the man in the family was preparing for a business trip, she began at 10:00 PM to iron all his dress shirts, finishing at approximately 11:30 PM. If her employer and his wife went out for the evening, she was expected to remain awake, often until midnight, until they returned. Three times a week, she went grocery shopping, riding five or six miles to the grocery store on the employer’s son’s old bicycle because she could not drive. She was also responsible for raking leaves, watering the garden, shoveling the snow, and washing the car twice a month. On Saturday, though her duties varied because the children were at home, her hours remained approximately the same. Sunday was Jamisola’s only day off, and she was required to return to the house by 7:00 PM.

                Requirement: Live in domestics may not work more than 5 days a workweek without a day off

                HRW: In the forty-three employment relationships reviewed by Human Rights Watch, both the average and the median workday was fourteen hours, with most workers working at least six day weeks and ten working seven. Only three workers reported working ten hours or less per day.

                Requirement: Live in domestic entitled to adequate sleeping accomodation

                HRW: Domestic workers complained of sleeping arrangements ranging from sleeping in their employers’ basements in utility rooms next to gas furnaces to sleeping in an unheated basement under construction, to sleeping on the basement floor. In addition to such sleeping situations, domestic workers also described unsafe working conditions that endangered their health.

                Requirement: Meal and rest periods, with more than five hours of work must come permission to choose food and prepare meals

                HRW: In a few cases, such as the case of Ahmed, workers were also allegedly denied sufficient nourishment. For example, a court found that V.G., the Sri Lankan domestic worker employed by a Kuwaiti student in 1992, was “denied . . . adequate food, which resulted in serious symptoms of malnourishment, including enlarged abdomen, massive hair loss, and cessation of menstrual cycles.”Report

              • This is a bit of a tangent, but I hate the idea of OT after 8 hours in a single day. Though I am grateful for overtime over 40 hours a week*, I am also quite glad that I never worked in a place that would have penalized me for ducking out two hours early on one day and then working ten the next.

                * – Though even there, I wish that there were flextime. Sometimes I would much rather have 1.5 hours off at some later date rather than 1.5 hourly rate.Report

              • I did not find the Human Rights Watch report you quoted in the link provided, but I googled it and found this report dated June 1, 2001, more than 10 years ago. The report does not include any data specifically concerning California. The case cited in the report that you excerpted, the case of Malika Jamisola, concerned a migrant worker in New Jersey, whose employer confiscated her passport and serially broke their contract.

                Was Ms. Jamisola taken advantage of? Most certainly. But consider this: It is already unlawful for employers to utilize unfair bargaining advantage to secure unconscionable employment agreements, break those agreements, and demand the performance of additional services without compensation under threat of deportation or termination. Instead of supporting clumsy, overbroad laws that make it illegal for law-abiding would-be employers and employees to engage in consensual agreements for good and useful services in good faith, why not support something along the lines of more funding for legal aid, for example? This would permit lawful economic activity to continue unfettered while providing means of recourse to those who are taken advantage of.

                I haven’t seen this approach advocated much, but seems to me it would be a much better solution to these problems, as it would make use of laws that already exist (i.e., contract and tort law) and a government institution that already exists (i.e., the courts). And no longer would there be need for legislators to continue writing volumes of statutes and regulations for each and every contingency that might arise in each and every corner of the economy.Report

              • Again, I’m not quoting HRW to be the definitive last word on the issue. The methodology HRW employs means I can’t say such and such percent of domestic workers experience this or that kind of treatment. I’m quoting the report to illustrate a larger point about the power dynamics at play and the possible range of abuses that can occur. So altogether, given imperfect information, I’d err on the side of something resembling AB 889.Report

  10. Avatar Jaybird says:

    It seems that the two sides of the argument seem to have two very different assumptions.

    1) Babysitting is similar to opening a lemonade stand. You offer the teenaged girl next door $X/hr to watch the kids watch television and put the kids to bed before the grownups get home from their date nite.

    2) Babysitting is similar to picking fruit. It’s a way to exploit minorities who have no better job options available to them. Every job deserves a minimum wage. Every job deserves a break time. Even unskilled jobs.

    Once again, I can’t help but wonder who is hoping to be helped by this legislation, who will *ACTUALLY* be helped by this legislation, and who the cops will bother enforcing this law against.Report

    • Avatar Rufus F. in reply to Jaybird says:

      I think the different assumptions have more to do with whether the law is really about nannies or babysitters. The people pushing for it are likely thinking of the woman who stays with the kids all day every day (probably imagining she’s an elderly immigrant) while the parents are working, and those of you who are against it are thinking of the teenage girl next door (so long as she’s 18 or older) with rich parents who’s working for clothing money. From the way it’s written, it’s probably possible to stack the deck either way.Report

      • Avatar Jaybird in reply to Rufus F. says:

        If the law also applies to the teenage girl next door with rich parents who is working for clothing money, no deck stacking is required.Report

        • Avatar Rufus F. in reply to Jaybird says:

          It’s not required, but you’re doing it. The people who are pushing for this bill are, I am willing to bet cash money, thinking of nannies and not the babysitter who comes over once a month while Mom and Dad go to the movies. This is quite an oversight. But, you are arguing, in your comment, that they are focused primarily on babysitters, because those of you who are against the bill are trying to focus attention entirely on teenage babysitters, and also because it makes it look like they have weird assumptions about babysitting. It also makes them look stupid. And I’m more than willing to bet that they are shifting the emphasis in a way that makes the opponents of the bill look equally bad- right? Claiming that you are focused on screwing nannies.

          So, you’ve got an overly broad bill that was probably designed by people who wanted to make sure that nannies make minimum wage, but which will have the effect of making teenage babysitting harder (provided that we mean 18 or 19 by ‘teenage’) to do. It’s a badly-written bill. The people who are pushing for the bill can now be expected to say that those of you who are against it have a bizarre and greed fueled animus against fairly compensating nannies who work full time caring for children, and those of you who are against it can be expected to claim that they are control freaks who want the government to regulate teenage babysitters and Moms and Dads who just want a night to themselves. It’s the “look over here- not over there” style of argumentation. And, hey, both arguments are accurate- sort of, kind of, in a way.Report

          • Avatar Jaybird in reply to Rufus F. says:

            I’m just guessing here but I suspect that existing labor law covers the abuses against nannies such as the minimum wage portion as well as the mandated breaks and whatnot.

            Does existing law contain a loophole?

            Instead, is this law an attempt to say “SERIOUSLY WE MEAN IT!” while, at the same time, covering things that had not been covered before?

            It seems to me to be much, much more likely the answers are no, yes rather than yes, no.Report

            • Avatar Jaybird in reply to Jaybird says:

              I mean, what the article talks about is closing the loophole as it pertains to the provision of worker’s comp.

              It seems to me that the hammer of the law won’t fall hardest upon those who hire nannies from nanny provision corporations (the sponsors of this bill, mind) but hardest upon those who engage in stuff like child-care co-ops.Report

              • Avatar Rufus F. in reply to Jaybird says:

                Yes, yes, I agree that this is a poorly written law that will likely cause more problems than it will fix. I’m sure both of us would have voted the same way on the bill if it came before us.

                All I’m saying is that the people who are pushing for the bill probably had in mind a scenario whereby some live in nanny was being paid 10 bucks a day under the table and not allowed a good night’s sleep because the law had loopholes and decided the law needed to be more clear that, yes as you put it, WE MEAN IT. That is, most likely, how it went down. Probably there was *not* some concerted effort to stick it to the babysitters.

                So, the most likely arguments now- in which people who support the law will claim that people who are against it really want that nanny to work for 10 bucks a day and not be given worker’s comp (see Jakecollins); and the people who are against it will claim that the law’s supporters are zealots who want government agents to regulate YOU when all you want to do is hire some kid to babysit for an evening- both of those arguments are pretty much what Tom calls douchebagging.

                But, yes, we agree that the law will probably be a fustercluck in practice.Report

              • Avatar Jaybird in reply to Rufus F. says:

                Here’s a fun excerpt from the article:

                “But if it can stop a little bit of the abuse that takes place in the domestic work field, that would be a good thing,” said Steve Lampert, CEO of eNannySource.com.

                This is regulatory capture in the name of protecting the powerless.Report

        • Avatar Will Truman in reply to Jaybird says:

          Notably, it only applies to the teenage girl next door if she is 18 or over. Of course, that just means that when she hits 18, they’ll find some 16 year old. Is this good? Is this bad? Bad for the 18 year old, good for the 16 year old. Bad for the parents who have to keep finding new babysitters. Maybe good for society if it encourages more young people to take on babysitting jobs.Report

  11. Avatar David Cheatham says:

    I’ll ignore the babysitter stuff, which is possibly a mistake on the part of lawmakers, and concentrate on the nannies, because the laws doesn’t make sense there either.

    I’m the last person to be willing to shrug and say ‘They knew what they were in for’ when it comes to employment. I don’t think workers should be required to work in smoke-filled bars, or near dangerous machinery, even if they explicitly are told that as part of their employment. Employers can’t just disclaim that sort of thing.

    And even I think this law is stupid. Being woken up in the middle of the night is part of the actual job of a live-in nanny. That is the reason they exist. There is otherwise no purpose to having a nanny live in your house.

    Likewise, part of the premise of a nanny is they are caring for children when there is no one else around. It makes absolutely no sense for them to have ‘breaks’. Perhaps there could be some sort of mandated ‘relaxation time’ where the parents can’t tell them what to do, and they’re allowed to just stick the kids on the couch and relax…but I’m not entirely convinced this has ever not been happening. (We’ve all heard horror stories of parents who give babysitters entirely full schedules, with every minute planned out, and that might happen to 3 hours a month babysitters…I have a feeling it doesn’t really happen with 40 hour a week nannies. No one has the time to schedule that stuff.)

    I quite agree that a live-in nanny is an employee, not a contractor, and there have been all sorts of abuses in that regard, including minimum wage violations. But that doesn’t mean regulating them as if their job is identical to everyone else’s makes sense.

    Although I will argue that there should probably be a slightly lower wage allowed if they are given room and probably board. Or just flat daily deduction from wages for that. Actually, I’d argue that someone living in your house on call at any time of day technically should be a contract worker, and not paid by the hour at all. Although danger lies in that direction, because you know people will pay for six hours of work a day and expect 14. But as that’s already happening…Report

  12. Avatar Patrick Cahalan says:

    Don’t have time to delve further, but…

    ftp://leginfo.ca.gov/pub/11-12/bill/asm/ab_0851-0900/ab_899_cfa_20110502_125805_asm_comm.html

    http://www.aroundthecapitol.com/billtrack/analysis.html?aid=231446

    This seems to apply to people who run home care provider organizations, not the people who actually hire babysitters or nannies.

    I haven’t read the full text of the bill yet, nor done research on the representatives in the committee.Report

    • If true, this sort of thing could have a really detrimental effect on provider organizations that cater to irregular care. If I can hire my own sitter and they can work six hours straight without a mandated free break, but if I hire from a company that has to make these sorts of accommodations, I suspect that this pretty heavily favors independent hiring. Which, considering that it has the support of provider organizations, makes me a little skeptical. I haven’t had time to read through the whole thing, though.Report

  13. Avatar Kitty Cahalan says:

    Next on the CA legislature’s plate: During transplant surgeries, entire surgical team gets hourly 10-minute sandwich break.Report

  14. Avatar trizzlor says:

    The relevant question is, when should the law enforce these normative duties? Typically, that question is answered something along the lines of: “When there is a demonstrated pattern of abuse.”

    Tim, I’d be curious to see how you would answer that question as well. Ideally in a way that is impervious to the “whatever that means” qualifier. But assuming it’s the typical answer, then what evidence of abuse would be enough to justify state enforcement and to what degree? Has an attempt been made to gather this evidence and proven unsuccessful?Report

    • Avatar Tim Kowal in reply to trizzlor says:

      Trizzlor,

      I responded to a similar question upthread here.Report

      • Avatar trizzlor in reply to Tim Kowal says:

        Thanks for your thoughtful response. I agree that widespread abuse is a reasonable criteria for government interference, but I still feel like we would disagree even if that were the case. Let’s imagine there is evidence that live-in nannies are not getting a chance at reasonably regular meals; they are routinely required to work a non-stop 8-10 hours per day; let’s say this is happening to a sizable minority of live-in workers (say 10-20%) and there’s rare instances of medical problems as a result etc. This happens now in extreme circumstances, but let’s hypothesize that it happened substantially. Is that the kind of evidence you’re talking about that would put you in support of such interference by the state? I’m not trying to play a bleeding-heart-card here, I’m just curious what exactly is your standard for evidence.Report

  15. Tim Kowal @ 12:19, Sorry to post down here but no more reply button in that thread.

    More funding for legal aid, no disagreement there. But I’d say both/and rather than either/or, more legal aid and legislation, not more legal aid instead of legislation. I’m convinced by the ILO Domestic Workers convention’s preambulatory clause,

    Recognizing the special conditions under which domestic work is carried out that make it desirable to supplement the general standards with standards specific to domestic workers so as to enable them to enjoy their rights fully

    I’ve been trying to argue what the “special conditions” of domestic work involve in terms of the power dynamic between employer and employee. I’d propose that imbalance is carried over to the court system, even being aware of your rights, whether or not language barriers are involved, having the social capital to think of calling a lawyer, all these are factors at play for me in assessing whether courts at present can effectively address abuses.

    Altogether, contract law, tort law, and the courts, again both/and rather than either/or. Doesn’t legislating in the manner of AB 889 clarify the employer-employee relationship? I take it from your comment, writing volumes of statutes and regulations for each and every contingency that might arise in each and every corner of the economy, you don’t look favorably on the Domestic Workers Convention, but I haven’t asked directly what you think of it (specifically in an American context)?Report

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