Monterey, CA : AB 889 Devastating To Senior Citizens, Particularly Those With Alzheimer's Or Dementia : View From A Private Duty Caregiver Serving, Carmel, Carmel Valley, Carmel-by-the-Sea, Gilroy, Gonzalez, Greenfield, Hollister, King City & Marina

by Richard Kuehn on 07/20/11

I wrote on my blog about a recent lobbying trip to Sacramento to lobby against two bills (SB 411 and AB 889) which could raise costs significantly for senior citizens who need assistance with day-to-day activities but want to remain independent, living in their own homes.  Now more than ever, it's important to get the word out about the devastation many seniors, particularly those requiring 24-hour live-in care, will face if AB 889 (which is now headed to the Senate Appropriations Committee) passes.  Our company was able to testify before the Senate Labor Committee, pointing out that if passed, seniors hiring 24-hour live-ins through Family inHome Caregiving and companies like mine would see their monthly bills more than double if they remained with two caregivers (as we currently normally staff) and instead needed to go to 5 or 6 caregivers coming and going in 8-hour shifts in order to save money.  The latter would be untenable for most seniors, particularly those with Alzheimer's disease or dementia, which like to see the same regular faces around and get disoriented when there are significant changes, like those proposed in this bill.  Many of our new Clients come from other agencies and their biggest complaint is that caregivers are constantly being swapped out and there is no continuity of service.  Therefore, we make it one of our company's biggest priorities to try and get caregivers who are stable and willing to work longer shifts in order to provide this continuity of care.  This typically involves 2 caregivers, one working four 24 hour shifts and another working three 24 hour shifts.  We normally have another caregiver trained on the job in case one is ill, which doesn't happen often.  We have also hired 24-hour live-ins for those in better health.  They typically work a 40 hour week but are on call in case problems arise.  Under the new law, however, a previous labor order which gave those hiring caregivers unique rules such as an overtime exemption so the caregiver could work 24 hour shifts or live-in without the company having to pay overtime and double time, is being removed.  Caregivers would have to be paid for their time sleeping unless you brought in another caregiver to be on duty while the main caregiver was sleeping.  I recently read the bill, and it contains harsh and inflammatory language which I don't believe accurately reflects my company or the rest of the industry.  For example, it states that "the vast majority of domestic workers are women of color and immigrants and are particularly vulnerable to unlawful employment practices and abuses.  Domestic workers usually work alone, behind closed doors, and out of the public eyes, leaving them isolated, vulnerable to abuse and exploitation, and unable to advocate collectively for better working conditions.  Domestic workers often labor under harsh conditions, work long hours for low wages without benefits or job security, and face termination without notice or severance pay, leaving many suddenly without a job and a home.  In the worst cases, domestic workers are verbally and physically abused or sexually assaulted, forced to sleep in conditions unfit for human habitation, and stripped of their privacy and dignity."  This language to me seems outrageous and totally out of touch with reality.  Our workers are not out of the public eye, they are paid to get seniors out and about so they can socialize with others in the community, go shopping, to the library or the Monterey Aquarium, or just have a nice walk in the park.  Many of our Clients live in beautiful homes in Carmel, Pacific Grove and Pebble Beach, hardly what I would call laboring under harsh working conditions.  The only cases which might be considered verbally or physically abusive are in the homes of patients with Alzheimer's or dementia.  These Clients can become easily agitated and may curse or otherwise misbehave.  We make sure we send in experienced qualified caregivers who are trained to deal with difficult Alzheimer's patients, and we make sure it doesn't get out of hand.  Never would we allow a worker to be forced to sleep in conditions unfit for human habitation, and stripped of their privacy and dignity.  This section of the bill to me seemed simply to take the worst possible scenario and make it seem as if it were commonplace in order to get the bill passed.  In fact, most companies like mine are extremely reputable and caring, the ones that need more administration and regulation are those caregivers that work under the table, which are not the subject of this legislation, unfortunately. 

 

 

Another issue I have with the bill is that it exempts those performing services under the In-Home Supportive Services program, which is totally unfair--this is where oversight is needed.  It also provides exemptions for outside salesmen, performing services for an interscholastic sports event such as an umpire, referee, judge, scorekeeper or timekeeper and, ski lift operators "while participating in recreational activities on his or her own initiative."  What ski lift operators and umpires and referees have to do with the home care industry I have no idea.  Someone clearly lobbied well to get these exemptions in.  There was no explanation as to why they were chosen as an exempt class.  But the biggest issue I have with the legislation is the impact it is going to have on senior citizens which are in need of 24-hour service.  The bill says that a live-in domestic work employee who is not required to be on duty for 24 consecutive hours or more shall have at least 12 consecutive hours free of duty during each workday of 24 hours, of which a minimum of eight hours are for uninterrupted sleep.  A live-in domestic work employee "suffered" or permitted to work during the 12 consecutive off-duty hours shall be compensated in accordance with Section 10, which would be double time (see Section 10 Of The Labor Code at the end of this story).  A live-in domestic work employee shall not be required to work more than five days in any one workweek without a day off of not less than 24 consecutive hours, except in an emergency.  In addition, it says, "there is a rebuttable presumption that a domestic work employee did not receive eight consecutive hours for uninterrupted sleep if he or she is required to be on duty for 24 consecutive hours or more and the domestic work employer does not hire a replacement worker for at least eight consecutive hours in the 24-hour work period.  Essentially, we might be required to pay a live-in caregiver 8 hours per day of double time if we didn't send in another caregiver to sit there while the Client and live-in slept.  For a senior who wanted one live-in with a relief person coming in on the weekend, the payroll cost alone would be $9,120 per month for a 30-day period, adding in workers compensation, insurance, and payroll taxes estimated at 25% of payroll, the cost to my company would be $11,400.  That does not include any allocation for the heavy costs we incur for liability insurance, advertising and marketing, our office space, case workers, schedulers, receptionist etc., not to mention a profit margin.  The cost to the Client would be absolutely astronomical, and that's assuming workers compensation expenses don't go up.  They will, because of the provision in AB 889 that, "it is presumed that the injury to an employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer to rebut the presumption of negligence.  It is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of the hazard, complained of, or that the injury was caused by the negligence of a fellow servant.  No contract or regulation shall restore to the employer any of the foregoing defenses."  On top of all this, the bill says that a domestic work employer shall permit a domestic work employee who works five hours or more to choose the food he or she eats and to prepare his or her own meals and to use their kitchen facilities.  Although many of our Clients are happy to do this, some are barely scraping by and can't afford the hourly fees plus having another mouth to feed.  Sorry for the long blog but hopefully I articulated here what we were not able to articulate to the Senate Appropriations Committee when we were given less than a minute to express our frustration with this bill.  Although the bill started out with good intentions it is ending up to be a bill which will either force us to raise costs dramatically (which could entice seniors to hire cheaper caregivers under the table which aren't bonded or insured) or to put in a minimum of five (probably more to have backups for when people are sick) caregivers to cover a 24-hour job.  As regular readers of my blog know, I cared for my grandmother for five years until she passed away in January.  She had dementia and Alzheimer's, and the most disturbing thing for her and others with the disease was having strange people in the house.  They don't like change or unfamiliar circumstances.  If this bill passes, putting in 5 to 6 people to cover 24-hour shifts for those with Alzheimer's disease or dementia would involve shift changes while they were asleep.  Imagine how disorienting it would be to have Alzheimer's disease and go to bed with one caregiver watching over you and wake up with a completely different person.  It would be very frightening.  Please continue to read my blog and I will let you know how you can help us lobby against the bill which is now headed towards the Appropriations Committee.

 

SECTION 10 OF THE LABOR CODE

 

(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 one and one-half 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. The requirements of this

 

section do 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) This section does not affect, change, or limit an employer's

 

liability under the workers compensation law.