Domestic Worker Bill of Rights does not cover residential care facilities

STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
1515 Clay Street, Suite 801
Oaldand, California 94612
(510) 622-3246
(510) 622-3258 fax

SUSAN A. DOVI
Staff Attorney

November 6, 2014

Consuela P. Neri,
Licensee, Administrator
Sweet Hollander Home
24329 Sylvan Glen Road
Diamond Bar, CA 91765

      Re:        Request for Clarification regarding the Domestic Worker Bill of Rights

Dear Ms. Neri,

Thank you for your letter of September 28,2014. In your letter you asked for clarification
concerning the Domestic Worker Bill of Rights, specifically, whether it applies to your business.
You indicate that that your business is a group home or residential care facility, caring for adnlts
with disabilities.

The Domestic Worker Bill of Rights applies to work performed in the home. California Labor
Code section 1451(a)(2) specifically states that "'Domestic Work' does not include care of
persons in facilities providing board or lodging in addition to medical, nursing, convalescent, aged,
or child care, including but not limited to, residential care facilities for the elderly." You indicate
your business is a residential care facility. The Domestic Worker Bill of Rights does not apply to
employees working in a residential care facility. Your business is governed by other provisions in
the California Labor Code and by Industrial Welfare Commission Order 5-2001 ("Wage Order 5"),
Regulating Wages, Hours and Working Conditions in the Public Housekeeping Industry.

The Domestic Worker Bill of Rights was enacted by the California Legislature in 2013 and
became effective January 1, 2014. The Domestic Worker Bill of Rights controls a specific area of
employment for certain domestic workers who work in the home and has special overtime
requirements for certain workers. Wage Order 15 also applies to household occupations, i.e. work
that takes place in the home. The Wage Orders, including Wage Order 5 and 15, are regulations
which have existed for decades and which were amended from time to time by the Industrial
Welfare Commission. Although the Commission is no longer funded, the Orders continue to
regulate in the various industries and occupations and have the force and effect of law. If there are
any conflicts between the Domestic Worker Bill of Rights and Wage Order 15, then the Domestic
Worker Bill of Rights would control as it is a statute enacted by the Legislature. Since the
Domestic Worker Bill of Rights does not apply to employees working in residential care facilities,
Wage Order 5 and other general requirements under the California Labor Code, including daily
and weekly overtime requirements, apply to your business.

Letter to Consuela P. Neri
November 6, 2014
Page 2

There are only limited exceptions to daily overtime under Wage Order 5. Nothing in your letter
would indicate that an exception applies to your business. Absent an exception, the ove11ime
requirements under California law are in the California Labor Code at Section 510. Labor Code
section 510 provides:

   Eight hours oflabor 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 one and one-half times the regular rate of
   pay for an employee. Any work in excess of 12 homs 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 ove11ime compensation in order to calculate the amount to be paid
   to an employee for any hour of overtime work.

I have enclosed a copy of Labor Code section 510 and Wage Order 5. Please note that the wage
order is required to be posted at the work premises.

Both Labor Code section 510 and Wage Order 5 also refer to an exception to the above regular
overtime rules applicable to a properly adopted "alternative workweek schedule" (AWS)
established between employees and an employer. Subject to specified limitations, a properly
adopted A WS can provide for workdays which exceed 8 hours without the payment of overtime
where employees voluntarily adopt an A WS following an election. It is very important that an
employer comply with the procedures and substantive requirements for instituting and applying an
A WS for its employees, and thus, careful review of the requirements specified in Labor Code
section 511 and Wage Order 5 must be performed prior to establishing such a schedule. In short, if
employees in your facility are working over 8 hours in a day, they should be paid ove11ime for all
hours over 8, unless you have a valid A WS.

This opinion is based exclusively on the facts and circumstances described in your request and is
given based upon your representations, express or implied, that you have provided a full and fair
description of all facts and circumstances that would be pe11inent to our consideration of the
questions presented. The existence of any other factual or historical background not contained in
your letter might require a conclusion different from the one expressed herein. You have
represented that this opinion is not sought by a party to pending private litigation concerning the
issues addressed herein. You have also represented that this opinion is not sought in connection
with an investigation or litigation between a client or firm and the Division of Labor Standards
Enforcement.

Thank you for your inquiry.

Sincerely,
~Q(9.
Susan A. Dovi
Staff Attorney