24 Jan More Labor Code Changes for 2014
Under recent case law expanding the reach of Section 218.5 of the Labor Code, employers had a right to recover attorneys’ fees from employees if the employer was victorious in the employment-related action for unpaid wages including violation of overtime and minimum wage laws. See UPS Wage and Hour Cases, 192 Cal. App. 4th 1425 (2011). Prior to the UPS ruling, a general principle, the only applicable statute was Section 1194 of the Labor Code, a one-way statute that provided that employees could recover attorneys’ fees in such actions, but employers could not. The new law, S.B. 462, amends Section 218.5 of the Labor Code to provide that an employer can only recover attorneys’ fees if the employer proves that the employee brought the action in bad faith. An employee need not make such a showing of bad faith to receive an award of attorneys’ fees and costs if the employee prevails in the action. As a practical matter, this change makes recovery of attorneys’ fees in employment cases once again a one-way statute.
Another important change is the Domestic Workers’ Bill of Rights (A.B. 241) that imposes overtime rules on domestic work employees, including nannies and caregivers. A domestic employee must be paid time-and-a-half as overtime for hours worked beyond 8 in a day or 40 in a week. A domestic worker must also be paid double time for hours in excess of 12 or for hours worked over 8 hours on the 7th consecutive day. This puts domestic workers on the same footing as almost all other employees.
There are two important exceptions. The first exception is made for a “personal attendant,” being someone who cares for a child or a disabled or elderly person and spends no more than 20% of his or her time on other household tasks. If an employee qualifies as a personal assistant rather than a domestic worker, he or she is not entitled to overtime until after 9 hours in a day or 45 hours in a week. Note that this is less stringent t than the 8-hour, 40-hour workweek imposed in virtually every other field of employment. Previous law was vague as to the meaning of personal attendant. Personal attendants are also exempt from meal break and rest break rules.
Similarly, a live-in domestic worker, such as a live-in nanny, is still not entitled to regular overtime protection. A live-in domestic worker is entitled to overtime pay only after 9 hours of work, and is only entitled to double time for work after the 9th hour on the 6th or 7th consecutive day. However, live-in domestic workers must receive at least 12 hours off duty in every 24 hour period.
The new law was heavily fought over fears it might be construed to include babysitters, and babysitters are now largely exempt from its provisions. It excludes any person under 18 years of old who is employed as a babysitter, any grandparent or sibling who is a babysitter, and any person who is defined as a “casual babysitter” meaning their work is “irregular or intermittent and is not performed by an individual whose vocation is babysitting.”