STATE OF CALIFORNIA
DEPARTMENT OF INDUSTRIAL RELATIONS
INDUSTRIAL WELFARE COMMISSION
Public Hearing and Meeting
March 2, 2001
State Capitol, Room 3191
P A R T I C I P A N T S
Industrial Welfare Commission
BILL DOMBROWSKI, Chair
LESLEE COLEMAN (arr. 10:24 a.m.)
BRIDGET BANE, Executive Officer
MARGUERITE C. STRICKLIN, Legal Counsel
DOUG McCONKIE, Analyst
TRACI PILGRIM, Analyst
I N D E X
Introduction and Swearing-In of Commissioner Cremins 5
Approval of Minutes 7
Sheepherders Wage Board and Proposals 7
JASPER HEMPEL, Western Range Association 8
DEIRDRE FLYNN, California Wool Growers Association 10
CATHERINE NYBERG, Agricultural Council of 10
TOM RANKIN, California Labor Federation, AFL-CIO 12
ROSALINDA GUILLEN, United Farm Workers of America 13
MARK SCHACHT, California Rural Legal Assistance 13
VICTOR FLORES, Sheepherders Union 15
CHRIS SCHNEIDER, Central California Legal Services 15
Consideration of Wage Board for Personal Attendants 24
DAVE HELMSIN, California Alliance of Child and 24
NANCY ARMENTROUT, California Association of 30
JIM GALSTERER, True to Life Childrenís Services 31
TIM WELCH, Devereux 34
RON DAVIS, Sacramento Childrenís Home 37
LONNIE NOLTA, Residential Care Society 42
JUDY HANSON, Paradise Oaks Youth Services 44
MARK MILLER, Advant Group Ministries 47
INDEX (Continued) Page
JOANNE ALLISON, Five Acres 51
HARRIETT McDONALD, Five Acres 55
ALLEN DAVENPORT, Service Employees International 59
PATRICIA GATES, SEIU Local 535 63
MARK STANFORD, SEIU Local 535 70
Further Business 86
Certificate of Reporter/Transcriber 88
P R O C E E D I N G S
(Time noted: 10:08 a.m.)
COMMISSIONER DOMBROWSKI: All right. Why donít we get started?
I would call the meeting to order and have the record show Commissioners Dombrowski, Bosco, and Rose present.
I would ask that Director Steve Smith, from the Department of Industrial Relations, come forward. We have a new commissioner to be sworn in, Mr. Timothy Cremins.
(Thereupon, Director Smith administered
the oath of office to Mr. Cremins.)
DIRECTOR SMITH: Congratulations.
COMMISSIONER CREMINS: Thank you.
DIRECTOR SMITH: Now, Iíve just got to say, for the record, anyone whoís willing to stand up here without any mental reservation has to have a few mental reservations!
DIRECTOR SMITH: Have fun, Tim.
Be nice to him -- itís his first day!
COMMISSIONER DOMBROWSKI: Tim, obviously, replaces Commissioner Broad, Barry Broad, who served for the last year. And Iíd just like to take a few moments to just praise Commissioner Broad for his services. I donít think we could have come anywhere near getting done all the work that was needed on AB 60 without Barryís work. I know the labor people in the room -- Barry is not -- but he really was pro-business for the last year. Heís been -- heís been a great spy for the business community.
COMMISSIONER DOMBROWSKI: But, no, seriously, Barry is a genuinely fair individual, sticks to his principles, and was just, I think, a pleasure -- pleasure to work with. And I just want to reflect that for that record.
COMMISSIONER BOSCO: Iíd like to second that. Barry was -- in additional to being a delightful person to work with, he was a fountain of knowledge and technical knowledge of all the Labor Code, not only that, but a lot of experience. I found, in getting his advice on things, he was always fair. There were times when I didnít get all the nuances to everything, but Barry will be very much missed by this Commission. And I know we all wish him well
COMMISSIONER DOMBROWSKI: Harold?
COMMISSIONER ROSE: I also dealt with Barry. Iíd email him a lot, and then he got two email addresses, and then they started sending them to both -- and we got that straightened out -- but I did communicate a lot with Barry. And I appreciate all the help and input that he provided this Commission. And I will continue to communicate with him.
COMMISSIONER DOMBROWSKI: All right. The first item on the agenda is approval of the minutes.
Do I have a motion?
COMMISSIONER BOSCO: So moved.
COMMISSIONER DOMBROWSKI: Second?
COMMISSIONER ROSE: Second.
COMMISSIONER DOMBROWSKI: All in favor, say "aye."
(Chorus of "ayes")
COMMISSIONER DOMBROWSKI: Motion passes.
Weíre going to go a little bit out of order. Iím going to take Item Number 3 first, and that is the sheepherder wage board consideration.
I would ask first that the employer side come forward. And what I want to do is have you -- you will present your side. We have agreement on a couple of issues, but I see we donít have agreement on the major issues. And after you are finished, Iím going to have the employee representatives come up and give their side of it.
So, please, if you could all just identify yourselves up front so I can --
MR. HEMPEL: Good morning. Iím Jasper Hempel, Kahn, Soares & Conway, representing the Western Range Association and the employer members of the wage board.
MR. MINABERRIGARAI: My name is Dominique Minaberrigarai from Diamond Sheep Company in Bakersfield, California. And I am a sitting member -- sitting member on the wage board on the employer side.
MS. FLYNN: Good morning. Iím Deirdre Flynn, California Wool Growers Association, executive director.
MS. NYBERG: Iím Catherine Nyberg, with Agricultural Council of California.
MR. HEMPEL: Mr. Chairman, if I may begin, again, Iím Jasper Hempel, with Kahn, Soares & Conway.
Iíd like to just very briefly discuss with you a variety of issues. Yesterday we provided to the board two documents. One was a side-by-side comparison of the petitionersí and the industryís position on the major points that have been the subject of the discussion of the two wage boards to date. In addition, we also provided to the board a white paper prepared by Dr. James Holt on the federal assistance programs that are available to the sheep industry.
This morning Iíve taken the additional step of providing to the Commission members copies of a mocked-up Wage Order 14 which specifically modifies, in a new Section 15, the employersí visions of where we are to date, following two wage boards. And the new Section 15 characterizes some of the new working conditions that both the employees and employers have worked on. I wonít dwell on any of those, other than to say that the employer community has been very proactive in trying to come up with -- and have come up with -- some good suggestions that have been accepted by the employees. And vice versa, the employees have come up with some good suggestions. So thereís been spirited discussion on most of the issues. And again, our work product reflects -- reflects our position, and I think there is some agreement.
We also believe, though, that there needs to be further discussion on most of the items. Specifically, we have not addressed and are not addressing in this document the compensation issues. And I would just like to leave the Commission with this idea, and that is, under the program, the H-2A program, H-2A workers are given a guaranteed, three-year written contract. Theyíre guaranteed employment for three years. Thereís a significant value to that. I canít put a dollar number on it, but it is significant. There is no other occupation that Iím aware of where employees in agriculture are guaranteed three years of employment.
With that, Iíd like to turn it over to Deirdre Flynn. And Dominique is available as a member of the wage board for any questions from the Commission about the current status.
MS. FLYNN: Thank you, Jasper.
Commissioners, thank you again for allowing us to be before you this morning and speaking.
And also, welcome to Commissioner Cremins. And the California Wool Growers Association would like to offer any background information or educational materials we can provide you on the history of the situation as we see it in the California sheep industry.
We again support the comments that Jasper just shared with you. Itís been a learning experience for all of us, and I think weíre making some definite progress. We look forward to future discussions about Wage Order 14 and the situation as it is.
And we are also speaking on behalf of the California Farm Bureau Federation. They couldnít be here today but extended their thoughts and our comments as well.
So, thank you.
MS. NYBERG: And Iím Catherine Nyberg, again, with Agricultural Council of California. And we represent ag co-ops, including the California Wool Growers Association.
We appreciate your work on this matter and we also support the position of the California sheep industry.
COMMISSIONER DOMBROWSKI: Any questions from anyone?
COMMISSIONER DOMBROWSKI: Okay. Thank you very much.
MR. HEMPEL: Thank you.
COMMISSIONER DOMBROWSKI: Tom Rankin.
Tom, if you could have whoever you want to have -- again, if you could just identify all of yourselves beforehand and --
MR. RANKIN: You want to go first?
MR. SCHACHT: Yes. Iím Mark Schacht, and Iím one of the employee wage board members.
MS. GUILLEN: Iím Rosalinda Guillen, employee wage board member, from the United Farm Workers of America.
MR. RANKIN: Tom Rankin, wage board member, from the California Labor Federation.
MS. RICE: Cynthia Rice -- Cynthia Rice, alternate wage board member, from California Rural Legal Assistance.
MR. FLORES: (Through Mr. Schneider, interpreting) Iím Victor Flores, from the Sheepherders Union.
MR. SCHNEIDER: Heís also a member of the wage board.
My name is Chris Schneider. Iím a member of the wage board for the employee side and Iím with Central California Legal Services.
MR. RANKIN: Iíd just like to say a few words in introduction. We did have two wage board meetings. We reached no agreement, but I think itís incumbent upon the Commission at this meeting to put forward a proposal for public hearing. After all, weíve had extensive public hearings on this matter already. The Commission has decided that the present wages and working conditions are inadequate. I think the evidence for that is very, very clear. A three-year contract at less than the minimum wage doesnít do much for anyone in this day and age.
I just want to say that if the Commission does not do its duty here, its statutory duty, our only recourse is to go to the Legislature. And I just hope that the
Commission takes its duty seriously and does the right thing by these workers. After all, the Industrial Welfare Commission is established to protect California workers at a higher standard than workers in general throughout the country. Thatís your job. Itís to look at the California workers and figure out what makes sense for them, what provides adequate cost of living, what provides adequate working conditions. Itís not to mirror federal standards, which is what the other side is basically asking you to do. If that were the case, we wouldnít need an IWC.
MS. GUILLEN: Iím Rosalinda Guillen, United Farm Workers of America.
Weíve had extensive discussions in the sheepherder wage board meetings. And I think itís incumbent upon the Industrial Welfare Commission, as Tom Rankin said, to take leadership in resolving a worker issue in California that is blatantly shameful. And I donít -- I canít see how much more evidence can be presented to show the lack of worker rights, the lack of worker benefits, and the lack of wages that these workers have in California.
In the face of discussions of expanding H-2A across, you know, the United States, I think that this is one example of a reason not to do that, and a reason not to follow the federal guidelines, because what we have seen and what weíve heard so far clearly show that something needs to be done. And I donít know how much more can happen to show that. And this Commission should take it very seriously that changes need to be made, and they need to be made on the workersí behalf.
MR. SCHACHT: Chairman and members, some of our other witnesses are going to summarize the compromise offer that we made to the employers, but I just wanted to make one point out of order.
Rosalinda has indicated that the H-2A program is probably going to be significantly expanded. I think itís also fair to say that as a result of discussions between Vicente Fox and George Bush, thereís going to be expansion of guest worker programs that affect a number of industries in California. Those that we know are involved in the process include the hotel and motel industry, restaurant industry, garment industry -- thereís a whole array of low-wage industries that are currently covered by Industrial Welfare Commission orders.
And I think itís fair to say that if the industry position prevails on the issue of sheepherders, that, in other words, the federal H-2A programs, the discredited H-2A program, becomes the ceiling and floor for standards under this -- under this order and occupation, other industries are going to be coming forward and saying, "Why arenít we entitled to get out from under California law and enhanced protections?" And I think youíre going to see a number of petitions before this Commission trying to do just that. And I think itís an extremely bad policy choice to substitute for the higher, more protective state standards weaker, less enforceable, and what is ultimately, I think, going to be proved in the course of the next four years, highly erodable standards, as the Bush administration listens to industriesí requests for weak and expansive guest labor programs.
MR. FLORES: (Through Mr. Schneider, interpreting) Victor Flores.
My recommendation to the Commission would be that you consider the sheepherders, that they should be considered just like any other farm worker in the State of California and have the same rights as any other farm worker, just as any citizen or resident alien or undocumented worker would have under California law.
We are asking for the very minimum that humanely should be applied so that these workers are treated as human beings, like they have restrooms and showers so that they can take care of their human necessities and be able to bathe, that they have access to phones, so that if they have an emergency, theyíre able to communicate with someone, and also that they be able to have the right to have visitors, that they can have their friends or officials come by and talk to them, because these are human beings, these are workers who have been productive to the state, to the employers, and to all the country.
And they run great risk in doing their jobs and being in the fields that are sprayed with pesticides, and others who are exposed to dangers in the mountains.
MR. SCHNEIDER: As weíve indicated, the employeesí proposal is a compromise proposal. And you have been given a study by the industry that claims that sheepherders earn more than the average farm worker. And I was shocked and appalled that the industry would have the audacity to make such a claim when you look at the facts. I want to show you what will happen under our proposal because, as you know, any other farm worker has a right to overtime pay after 10 hours work in one day. We waive that. Other farm workers have a right to double time after 12. They have -- on the seventh day, they have a right to time and a half for the first 8 hours, and then double time after 8 hours, which is less than every other worker gets. So farm workers are treated as second-class citizens.
Hereís what workers get under our proposal. If these workers were regular farm workers who work, as the growers have admitted, 13 hours a day, seven days a week, for six months during the lambing season, their weekly wage would be $681, for a monthly wage of $2,929.37. Over six months, the lambing season, a regular farm worker working that many hours would earn $17,576.25. Under our proposal, the employeesí proposal, for that same amount of hours worked, the worker will earn $12,360. Thatís $5,215.25 of unpaid labor that the grower gets under our proposal.
And if you look at the growersí proposal to keep the current wages, for that same six months, the worker would get $5,400. Thatís equal to $12,176.25 unpaid wages for the worker.
If you compare the lambing season work to the current annual wage of a sheepherder and the growersí proposal, and thereís six months, a regular farm worker would earn $17,576. In a year, a sheepherder, under the industry proposal, earns $10,800. They earn in a year $8,776 less than what a normal farm worker would earn during the lambing season working this number of hours.
Thereís no need for further hearings. Weíve had hearings after hearings. Thereís no need for further evidence, and thereís no need more for the growersí fuzzy math. Itís time for you to take action.
COMMISSIONER DOMBROWSKI: Let me ask a question.
Marguerite, time-wise, for us to -- whatever we adopt, for it to become effective July 1st, this year, what is -- whatís the timeline we have to follow there?
MS. STRICKLIN: Well, first of all, by statute, you have to hold public hearings set up on the proposed regulations, whatever youíre going to put out. Thatís 30 days from whatever the date you set to the hearing. After hearings on the proposed regulations, you can send out a 10-day notice for a meeting on the adoption of whatever it is youíve decided you may adopt or may not adopt. But the key thing is, is that you have to adopt the regulations and publish them 60 days before they become effective, so you have to act and publish by May 1st in order for it to become effective by July 1st.
COMMISSIONER DOMBROWSKI: So if we didnít put something out for comment today, we would miss that deadline, correct, in essence?
MS. STRICKLIN: More likely than not, yeah.
COMMISSIONER DOMBROWSKI: Okay. Now, in the past when weíve had some issues -- I remember one issue we had on the manager issue, where we put out two proposals, we put out both sidesí, in essence, for comment for 30 days, and then we scheduled a hearing, which would be our next hearing in, I guess, early April. I donít remember the date offhand, if itís even been selected.
We could -- we could issue both, put both proposals out for comment, then calendar this for the next hearing, and then schedule the -- we could fit the 10-day thing after that, right?
MS. STRICKLIN: Right, um-hmm.
COMMISSIONER DOMBROWSKI: Okay. If I could get one person from each sideís reaction to that idea?
MR. SCHACHT: Mr. Chairman, Mark Schacht.
Weíre prepared to accept that proposal. We think itís a good way to proceed.
The only other issue, I think, is the question of whether there will be one or more public hearings. I
COMMISSIONER DOMBROWSKI: Well, no. I think we just said if we have any more than one more public hearing, youíre not going to make July 1st. And right now, Iím kind of targeting to put this issue to bed.
MR. SCHACHT: Yes.
MS. STRICKLIN: Well, the issue is, is what area
-- if this is an area that affects a single area in the state, if one city could be designated -- I donít know if it would be Fresno, Bakersfield -- that would be -- no? Youíre shaking your head. Iím not -- I donít know.
MR. SCHACHT: Well, I was thinking more -- something more centrally located in the state, Fresno.
COMMISSIONER DOMBROWSKI: Weíll figure that out on our own, okay? Thank you.
MS. STRICKLIN: But my point is, is then you could have one hearing, if thatís the idea.
MR. HEMPEL: Thank you, Mr. Chairman.
We were under the impression, and we still are, that weíre still discussing these items.
COMMISSIONER DOMBROWSKI: Well, I would hope that over that 30-day period, both sides would be working together to resolve this, and so that there would be unanimity by the early April hearing.
MR. HEMPEL: We would request -- and I didnít say it in the opening statement -- that we have an opportunity to have the hearing in Bakersfield, which is where the predominance of the sheep herders, as well as the sheep industry, is located. And that would be --
COMMISSIONER DOMBROWSKI: Weíll take -- weíll take that under advisement.
MR. HEMPEL: Thank you.
COMMISSIONER DOMBROWSKI: But answer my question about if we put out both proposals and this timeline. Is that fine with you?
MR. HEMPEL: Weíd prefer further discussion, Mr. Chairman. That would be our preference, but --
COMMISSIONER DOMBROWSKI: I donít -- I donít think we want to do that.
MR. HEMPEL: Okay. Then youíre not giving me any choice.
COMMISSIONER DOMBROWSKI: No, not really.
MR. HEMPEL: Thank you.
COMMISSIONER DOMBROWSKI: I just want it on the record how you felt about it.
MR. HEMPEL: Lukewarm.
COMMISSIONER DOMBROWSKI: Okay.
MR. HEMPEL: Thank you.
COMMISSIONER DOMBROWSKI: I guess I would ask my other commissioners what they think of this idea, then.
Anybody got -- Doug?
COMMISSIONER BOSCO: I think, hour for hour, those 200 people in the state have had as much of a hearing as the sheepherders have. And thatís good, because itís a particularly vexatious problem. We all know that they operate under the auspices of the federal program, and yet it seems to me that the working conditions and the hours have no relationship to any other industry in California.
Yeah. And I think weíre all cognizant of that. And you folks have done a very good job of making that very clear.
On the other hand, this is an industry that I think could make a credible case that -- you know, that thereís very little there to give, that it is not a prosperous industry, and itís not even a profitable industry. And we donít want to kill the goose that laid the golden egg, although that isnít a golden egg by any means. You know, it may not even be an egg.
But having said that, I think it really is the time for a compromise. And the best people to reach that are the people that are directly affected on both sides.
I cannot imagine this Commission doing nothing about this. And so, I think -- so I think itís better for everybody to come up with some reasonable compromise.
I want to commend the wage boards. Youíve done a very good job. Each side has presented us with really good-quality information, and, to some extent, really a very good framework for resolving this. But weíve got to move a little bit in the next month.
Iím willing, Mr. Chairman, to expend time in meeting, if thatís appropriate, with the various sides. Iím really hoping that we can come to finality on this. We certainly have, I think, done our job of hearing -- hearing everybodyís sides on all parts of the state on it, that -- I mean, if we have to go to Bakersfield, I guess we will, but I think we know the issues. And now, really, itís the -- both sides that have to come up with that compromise.
And I -- and incidentally, I like the idea of putting out both proposals so that it isnít prejudicial, and yet weíre on a timeline that we will be able to do something.
COMMISSIONER DOMBROWSKI: Okay.
COMMISSIONER ROSE: I also agree one more meeting should be sufficient, and both proposals out there. Letís see what they come back with.
COMMISSIONER DOMBROWSKI: Tim?
COMMISSIONER CREMINS: With my limited background, I would tend to agree with any proposal that furthers along (inaudible) and my biggest concern coming in here, delaying any increase, whether how slight or whether how big, depending on your perspective.
COMMISSIONER DOMBROWSKI: Okay.
COMMISSIONER COLEMAN: I would agree --
COMMISSIONER DOMBROWSKI: Okay.
COMMISSIONER COLEMAN: -- with taking action as soon as, legally, we can.
COMMISSIONER DOMBROWSKI: Procedurally, what do we have to do? We have to -- do we just put this out or we have to take a vote? Or what --
MS. STRICKLIN: You can take a vote, direct the staff to put out the proposals for the next meeting date -- I donít believe thatís been selected, but itíll be sometime in early April.
COMMISSIONER DOMBROWSKI: Okay. Can I get a motion for that?
COMMISSIONER BOSCO: I would move.
COMMISSIONER DOMBROWSKI: And a second?
COMMISSIONER ROSE: Second.
COMMISSIONER DOMBROWSKI: All in favor, say "aye."
(Chorus of "ayes")
COMMISSIONER DOMBROWSKI: Thatís adopted.
MR. SCHNEIDER: Thank you.
COMMISSIONER DOMBROWSKI: Thank you.
MR. SCHNEIDER: Oh, Iím sorry. Iíd like to put this in the record, which is a smaller version of this.
COMMISSIONER DOMBROWSKI: Okay.
Dave Helmsin. And Dave, I donít know if you want to bring up a panel and have them identify themselves or -- Iíve got a lot of names down here, and Iím not sure which side these cards are all on.
MR. HELMSIN: Mr. Chairman --
COMMISSIONER DOMBROWSKI: This is on Item Number 2 on the agenda, wages, hours, and conditions of labor of personal attendants, and whether a wage board should be instituted.
MR. HELMSIN: Iím Dave Helmsin, on behalf of the California Alliance of Child and Family Caregivers. And I have with me Doug Johnson to -- heís going to provide the technical expertise in the absence of Jennifer Hendrick Snyder.
And we do have a number of operators, providers, group home providers, as well as a few employees that would like to talk. But I thought maybe weíll just outline the request for you and kind of highlight what we said last meeting, and then we can bring them up, in that order, if you like.
COMMISSIONER DOMBROWSKI: All right.
MR. HELMSIN: So we are to ask the Commission to convene a wage board to consider a modification to the provisions of Wage Order 5, only as it relates to the employees of 24-hour residential facilities providing services to foster children. These are commonly referred to as group homes in California.
Prior to 1998, the group homes enjoyed an exemption from the 8-hour workday through Wage Order 5, Section 3(D), which required overtime only when an employee exceeded 54 hours in a workweek, at which time he reverted to an 8-hour workday.
In January -- excuse me -- from 1998 to í99, state law mirrored federal law and the overtime requirement was really for weekly overtime over 40 hours.
When AB 60 became effective on January of 2000, the 54-hour limit and reversion to the 8-hour workday was reinstated for the couple of years that you folks considered the issue. And on June 30, 2000, the Commission moved to maintain the foster care exemption. However, they kind of put the federal requirements in a context with the state requirements that ended up with a more restrictive requirement than even the federal standard in this area. So, by substituting the 40-hour federal standard for the 54-hour limit that existing in state statute, we end up now -- weíll be requiring to pay employees or to revert to the 8-hour workday any time an employee exceeds 40 in a workweek. And that has worked a very dire hardship on the providers as well as some employees, who are interested in those longer shifts.
So I want to talk about the impact, basically, on the therapeutic value of what we do. Our primary concern is the kids. And, in fact, in this particular segment of the 24-hour care industry, the longer shifts make tremendous clinical sense. You are trying to simulate parenting for these individuals who are in the group homes. And to the extent that you can have them wake up with the same caregiver that they went to bed with -- poor terminology -- and have the same caregiver at home when they return from school that sent them off to school, you create continuity in the care, which is essential in mainstreaming these children and bringing them back to a normal life.
We also have deep concerns about the financial impact of the ruling. And, in fact, these are 100 percent government-funded, nonprofit homes. The government is their only customer. And in fact, they -- as a result, they donít have the ability to pass any increase in costs on to their payer without some specific budget action. They also, because of the government pay in these areas, do not have the flexibility to go recruit another bunch of staff that could supplant the need for overtime. So theyíre really left with a decision to either cut the overtime or incur the $23 million cost at the significant jeopardy of the care for the kids that theyíd have to trim and squeeze.
So, itís basically unworkable, and ultimately, weíre going to be asking the Commission to replace the -- or reinstate the prior exemption. And we have built an industry and the financing for that industry around an assumption that employees can work 54 hours before theyíre paid daily overtime. And weíre -- thatís all weíre asking, is go back, basically, to what we had, recognizing weíre always subject to the federal requirements for weekly hours over 40.
So, ultimately, that would be our request. For purposes of todayís hearing, our interest is really in getting you to appoint a wage board to reconsider this issue.
As a second and much, much less serious but more prevalent issue, we have rest periods and meal periods that we need some clarification on, particularly the meal periods. We -- in these 24-hour care homes -- and this is not unique just to foster care, but also to residential care for the elderly as well as group homes for DD, children with developmental disabilities or adults with developmental disabilities. There is often one person responsible for the care of those individuals for a shift, and particularly the night shift. There -- it is not possible to give them a duty-free meal, let them leave the premises. It is not practical to bring someone in to cover for that -- that meal period. And all the employees, as a condition of employment, have voluntarily agreed to that scenario, and it has existed for a long time, where they take on-duty meals.
Rest periods, very similar. You know, thereís lot of time in that shift for reading, homework, and other things. But to give them assigned, off-the-premises or duty-free rest periods is totally impractical.
So, we think that the wage board -- these are both within the same wage order, and it does pertain to a slightly larger group. I want to make it very clear that the overtime request here only pertains to foster care, 24-hour care, group homes. This particular request would go a little broader, but it would still be limited only to 24-hour care, where you had a single employee responsible for the clients.
So weíd like to see those two items considered in the wage board. And we have several other here that -- other folks here that would be interested in talking on this point.
MS. STRICKLIN: I have a question, actually. On the rest periods and the meal periods, youíve mentioned assigned off-duty rest periods. I donít see that thatís a requirement of the wage order.
MR. HELMSIN: Our understanding is that the employee, under the current wage order, has the right to have a duty-free rest period designated during their shift. And my -- my point is that we donít mind them taking rest periods. Obviously, those are good things. But we need them to be -- maintain responsibility during that rest period for the children or the disabled individuals or whomever theyíre caring for.
And Iíd -- we ask for clarification on that because maybe our interpretation isnít consistent with yours. But weíd like to make sure everybodyís on the same page in that regard.
MS. STRICKLIN: I think that youíre reading it more restrictively than I would.
COMMISSIONER DOMBROWSKI: Is that something we could have you craft for a quick reading from the Department of Labor, for an interpretation?
MS. STRICKLIN: Sure. Sure.
MR. HELMSIN: That would be fine. If you can do that on the meal periods, that would work for us as well.
MS. STRICKLIN: Weíll see what we can do.
MR. HELMSIN: All right. Doug was here for technical input, but we do have some providers and actual employees.
COMMISSIONER DOMBROWSKI: Any questions?
MS. ARMENTROUT: Hi. Nancy Armentrout, representing the California Association of Health Facilities. Iím here on behalf of our homes for the developmentally disabled and our assisted living facilities that are the smaller six-bed and under, 24-hour care facilities who -- we donít have an issue with the first overtime issues that the foster care people have, but we are concerned about the on-duty meal periods and the language which allows the employee to revoke that agreement at any time.
So if we can get clarification and we can open that, we are asking just for a slight modification to the language governing the on-duty meal periods. Itís a problem because our shifts are 12-hour shifts, and within this industry itís very hard for us to find employees that would come into our facilities during the middle of the night to provide a person relief whoís on that 12-hour shift. If we asked someone to show up, they, obviously, have to work a certain amount of numbers, and it is cost-prohibitive. And at the rate that we are able to pay these employees, weíre just having difficulty finding -- finding someone to come up and give someone a break during the middle of the night.
So, we would ask that as you look at these -- these issues in the wage board, that you address the issue of on-duty meal periods, specifically for those 24-hour care facilities that have a single employee thatís the only one at the building.
COMMISSIONER DOMBROWSKI: Okay. Next.
MR. GALSTERER: Hi. Iím Jim --
COMMISSIONER DOMBROWSKI: I would ask -- donít be hitting the microphone buttons, and weíll get this through a little sooner if we just leave them all on.
MR. GALSTERER: Thank you.
Iím Jim Galsterer. Iím executive director of True to Life Childrenís Services in Sebastopol. We have group homes in Sonoma and Mendocino County, and we also provide shelter services in Mendocino County.
Iím here to ask for you to consider a change on this Wage Order 5 for our group home employees. When I first heard about this last summer, last spring, I was very concerned, as a lot of my colleagues were, on how the -- how this was going to affect our children. We feel that itís very important that children have consistency during the day, and that wasnít going to be served by -- with 8-hour shifts.
Typically, staff come in around two oíclock when the children are coming home from school and are there until eleven or so at night. Weekends, of course, the shifts are longer.
I began this work as a childcare employee 28 years ago. And we always worked long shifts, and I think thatís carried on for all the right reasons throughout the years. It is certainly always best for the children, and we continue to use this at True to Life Childrenís Services as much as we can, because of the stability. And over time, many employees, childcare workers, will take a couple of jobs doing this work. It isnít necessarily intense work. A lot of it is, you know, kind of family-oriented activities in many ways. And theyíre able to work three days and then possibly have another part-time job. And that has worked well for them.
The interesting thing has been -- my biggest complaint in our agency has been that the staff are complaining about having lost the ability to have overtime. Typically, we had 10- to 14-hour shifts per day, and then a staff meeting. And most folks were scheduled around 44 or 45 hours a week, and we just built in their overtime over 40 hours. Theyíre -- and they also had the ability to fill in other shifts in a different home. And their big -- our biggest complaint has been that they -- weíve had -- we cannot possibly have people working over 40 hours now. Itís -- it impacts our budget way too greatly, and so we have -- we have to hold everybody under 40 hours now. And itís -- and thatís my biggest complaint. Folks are saying, "Weíve lost so much in overtime." What weíve had to do is hire additional staff in order to work those extra hours.
The only other comment Iíd have is -- is we havenít had a problem since October, when this took effect, but last summer, we couldnít hire anyone. And a hot economy and folks were -- it was -- everybody, at least in our area, seemed like they had a job and a half, and we couldnít find people to work. If that happened this summer, we would -- we -- and we had to cover all our shifts and we couldnít hire people, it -- Iím not positive we could make it. Group homes are a break-even to a loss project as it is. And I hope we donít have to get there.
The only other comment I would have is on meals. We always have taken our meals with the children. Staff like doing that. They cook with them. They do a lot of normal things with them. The -- they are not opting typically to take a break and go off-site. If they would, it would -- it would be another very difficult -- difficult for us to handle in our job.
COMMISSIONER ROSE: Your funding comes from where to pay your employees?
MR. GALSTERER: Oh, itís -- weíre all governmental, so weíre public -- public funded.
COMMISSIONER ROSE: I understand. What government, Iím asking.
MR. GALSTERER: Oh, Iím sorry. Itís -- it comes
-- typically, about half is federal and then about 40 percent or 30 percent local, and 20 percent state.
COMMISSIONER ROSE: Thank you.
MR. WELCH: Hello. My name is Tim Welch. Iím executive director of Devereux, which operates group homes for children in Santa Barbara and San Diego Counties, especially -- essentially all of the group homes that we operate serve children or adults whose services are paid for by either of two state agencies, the Department of Developmental Services or the Department of Social Services, Foster Care Rates Bureau.
During the past eight years, the Devereux Foundation has supplemented our California operation by an average of $1 million per year. This is in addition to several million dollars that have been raised through various fundraising efforts. This has been necessary for Devereux, a not-for-profit organization operating in a particularly high-cost area, at Santa Barbara, to fulfill its mission of serving people with dignity, respect, and excellence.
During the past year, the foundation supplement for Devereux Californiaís programs has exceeded $2.5 million, with an additional $1.8 million having been raised through contributions. Also during the past year, we have been required by economic necessity, due to inadequate levels of reimbursement, to reduce expenses by approximately $650,000, to eliminate 52 childrenís program beds, and to reduce our workforce by approximately 100 people in order to be able to have any chance to continue to carry out our vital mission of serving the needs of people with emotional, behavioral, developmental, educational, and intellectual challenges.
In calendar year 2000, we spent $905,756 in overtime salaries. The effect of the change in the law on October 1st, 2000, to eliminate the exemption to pay overtime for personnel who work in programs that serve children in 24-hour-a-day care, when extrapolated to the entire year, adds another 9.1 percent, or approximately $82,000 of additional overtime expense to our budget, which our organization cannot afford.
We have already been forced to close 52 vitally needed childrenís beds during the past year. Faced with the alternative of continuing to lose money in pursuit of trying to fulfill our mission or closing the remaining 100 childrenís group home beds in our Santa Barbara programs, we will be forced to close. The additional cost associated with the overtime requirements amounts to an unfunded mandate that is one of the drivers behind this unhappy prospect.
Devereux is a major employer of students from the University of California at Santa Barbara, whose academic lifestyles make working longer shifts, especially at nights and on weekends, a real convenience for them. But faced with the costs associated with the overtime law, we have to strictly control when we can in an extremely tight labor market any hours that they work over 40 of the 8-hour -- any hours that they work over 40, because of the 8-hour rule applied retroactively to the beginning of each workweek. That deprives students and student employees of regular hours of compensation that they could receive in the absence of the 40-hour rule. Or when they do exceed the 40 in a week, it exacerbates our organizationís financial losses.
I implore you to change the 40-hour daily overtime exemption back to the 54 hours. That will be much better for our clients, for our employees, and for the future viability -- indeed, existence -- of our organization.
COMMISSIONER DOMBROWSKI: Let me ask you a question. And I donít know if you can answer this or not, but -- and maybe you did. Whatís the -- whatís the typical percentage, rough percentage, of employees who work more than 40 hours in any given week in your facility?
MR. WELCH: Because of the extremely tight labor market conditions that exist in Santa Barbara, unfortunately for the organizationís financial viability, itís very high. I canít give it to you as a percentage, but itís very high.
We have an average for the year -- our average for the year was 26.88 full-time equivalents of just overtime. So itís -- itís very high.
COMMISSIONER DOMBROWSKI: Harold?
COMMISSIONER ROSE: What I understand here -- maybe Iím looking at it a little different -- is youíre asking the IWC to reinstate an exemption you had prior --
MR. WELCH: Yes.
COMMISSIONER ROSE: -- to which you balanced your budget.
MR. WELCH: Yes, sir.
COMMISSIONER DOMBROWSKI: Okay.
MR. DAVIS: My name is Ron Davis. Iím executive director at the Sacramento Childrenís Home, here in your own community. We are a 134-year-old organization that started in Sacramento as an orphanage and have changed over time to provide mental health treatment to emotionally troubled children, similar to the people that have already given testimony. We have 80 children that live in our facility, plus another 10 babies and preschool-age children in a crisis nursery in our community. We have about 90 to 100 direct-care staff that are -- that are employed in providing direct services and supervision for all these -- all these children.
One of the things that weíve experienced that really isnít an issue with Wage Order 5, but is -- is really related, is an extreme shortage and difficulty in hiring direct-care workers. Itís a very competitive market. Weíve -- weíve raised our salaries as much as we can. And to provide the care that we do for these kids really creates a deficit within our organization, in the residential care component, of about $600,000 to $700,000 a year that we have to make up with charitable contributions, which we do. But itís -- itís increasingly hard to -- to keep up with the additional funds that we have to raise to provide quality services for very troubled children.
Now, previously, we were able to schedule staff to work 10-hour shifts. And like the gentleman from Devereux, we too hire a lot of college students who like that flexibility. They have classes on certain days of the week, and they like to be able to concentrate their work on -- on other days of the week when theyíre free, or evenings or weekends.
Of course, now weíve had to really change our 10-hour schedules or shifts back to 8 whenever possible. But what has happened too with the awake staff at night -- and we have the -- the kinds of kids live in our program who require someone to be awake in each of the cottages in the evening to -- to respond to emergencies or respond to night-time fears or whatever might be going on with the children.
For these people, weíve had to change from 10-hour shifts, which allowed them to be there for the whole evening, for the whole night, and then to assist them in the morning in getting up and getting ready for school, making breakfast -- more like a family and the kind of atmosphere youíd like to have in a residential care facility for children. Now weíve had to cut those shifts back to 8, and we have other people coming in in the morning to provide that care. So the continuity and the flexibility and the quality of care gets diminished unless you take on the responsibility of -- of providing and paying more overtime for these people.
Not only do we have a need for increased staff, but weíve -- and with fewer workers, we have to spread the hours that are required to provide supervision for these kids over fewer people, so that, for our organization, it really has created a higher cost of overtime. Weíve also had to do things like split shifts, where you -- where you bring your people in in the morning, and then theyíre off for a while, and they come back, you know, later in the day, and things that arenít conducive to worker morale and comfort for the workers.
The night shift -- with 10-hour shifts, we were able to give them a couple of days off per pay period. Now -- or three days off per pay period, and now, with the shorter shifts, there are fewer days off for these people per pay period.
And the cost of all this for us, for our organization, in addition to the -- the amount of money that I mentioned that we have to raise through charitable giving to cover our deficit, the increase in overtime per pay period for our organization has gone from about $2,000 per pay period to $6,000 per pay period. So you can see, with 26 pay periods per year, the annual increased cost of dealing with this kind of a problem.
Previously, we rarely had double time. And occasionally now, weíre -- we are running some double-time hours as well, which would be hours in excess of 12 hours in a day. Again, this is because we have to cover the shifts. We have to provide the consistent level of supervision for these kids in our programs.
COMMISSIONER DOMBROWSKI: Let me ask you a question, though.
MR. DAVIS: Um-hmm.
COMMISSIONER DOMBROWSKI: I mean, the other sideís going to come up here and state their case, I think, very forcefully, but you have one of the rare exemptions in the state right now for daily overtime.
MR. DAVIS: Um-hmm.
COMMISSIONER DOMBROWSKI: I mean, you can work as many hours as you wish, no elections. You just have that 40-hour barrier. With all the problems youíre outlining here, you do understand, by opening this process up, you could lose that exemption, and you could be back here -- I mean, all it takes is three votes on this panel to put you at an 8-hour day every day.
So I -- I would -- Iím sympathetic to your problem, but I want you to understand the landmine youíre walking into. And youíre going to hear it, when you people are finished.
COMMISSIONER ROSE: What has been done by the industry to increase funding from the federal and state?
MR. HELMSIN: The -- while the funding blend is federal, county, and state, the state is the driver. They set the budget, and the federal funds pass through them, and they require local government to pay their match. So itís all about the state.
Weíre in the middle of a budget process right now. We have articulated this as an issue, a very important issue. Itís one of our top three issues for the budget discussions.
I donít know anybody whoís following the state budget process. The read is not real good there, and we have not seen the receptivity that we would have liked to on this particular issue. The formal hearings havenít started at this point, but everyone is saying that the -- the targets for the subcommittees which would have to fund this particular augmentation have been reduced substantially and thereís going to be incredible competition for the money.
We believe that the same government that put us in this predicament ought to accept the responsibility for paying their share of the impact. But unfortunately, we -- you know, we go to the budget process with a hundred others and compete for a bunch of different priorities.
MS. NOLTA: Iím Lonnie Nolta, with the Residential Care Society. I actually was going to wait and do it under Item 4, but I couldnít help but come forward with colleagues here. We represent the interests of the individuals in the operation of children, adult, and elderly care facilities, also includes persons with mental health issues.
I would certainly urge real consideration about what theyíre saying. In the area of group homes, there is an advantage that they are mandated as nonprofit corporations. The majority of residential facilities in California that are licensed under the Department of Social Services, Community Care Licensing, and particularly for adults and elderly, are not nonprofit. They are small, generally six-and-fewer group homes, or theyíre larger assisted living for the elderly. They are not nonprofits, do not have the advantage of fundraising, and yet are faced with the same issues of trying to pay staff, if you will.
On top of that, and certainly colleagues here are dealing with the increasing gasoline costs for transportation and dealing with the accelerated costs for energy, electrical and heating. It is a major, major problem throughout the State of California.
As last year, in a letter to the Commission, I urged that there be a meeting between representatives from the Commission, the Department of Developmental Services, and the Department of Social Services regarding a number of these issues, in trying to get clarity, in particular under Wage Order 5. And we were urging a separate section to deal with community care licensed facilities in California.
There currently are over 11,500 of these programs, and they rely on, as mentioned earlier, state or some type of government funding, basically, county, state, or federal, or combinations thereof. And there have not been increases to meet the escalating costs of the operation.
So weíre also talking about some folks placed in residential programs, particularly elderly, that only have Social Security or SSI, SSB. Six and fewer beds in particular can only maybe take one person. This is a major issue for the future as we see an escalation in the elderly population in California in particular.
So we would ask that you look at it from a broader viewpoint also. And I certainly do support the issues that have been mentioned here by colleagues.
I have submitted another letter, plus a copy of the one from April of last year.
Thank you very much.
MS. HANSON: My name is Judy Hanson. Iím the human resource director for Paradise Oaks Youth Services. We have five residential treatment homes that are located in the Citrus Heights area, with a total of 30 boys in our care.
And the reason Iím here today also is to ask the Commission to change the Wage Order 5 as it relates to the employees of group homes. Our primary concern is the adverse effect that the payment of the daily overtime after 40 hours in a workweek has caused, both to our agency and to our employees.
The hourly wages for the staff that provide these desperately needed services to disadvantaged children never have been competitive with private industry, because we are a totally state-funded nonprofit agency. Our particular agency has set the standard of having a bachelorís degree for all childcare workers.
The majority of our staff members have a real desire and dedication to help these boys be successful in our program. They have chosen to work with kids not for monetary rewards, but because they really care. As a way of being able to increase their wages, most have been anxious and willing to work overtime. This has been beneficial to the staff because they earn the time-and-a-half wages, beneficial to Paradise Oaks because we can utilized experienced people, and beneficial to our children because they have the consistency of adults whom they know and trust.
With the current law that reverts to daily overtime after 40 hours in one workweek, weíve had to make changes in our staff scheduling because we simply cannot afford to pay double-time wages. Our weekend staff, who currently work 16 hours on Saturday and on Sunday, can do an additional 8 hours during the week, but thatís the maximum they can do because after that, it pushes them into double time. And so these people who have been willing to work extra hours and wanting to do them have not done so. The weekday staff, who had been able to come in and work an additional early shift or late shift for someone who was sick or on vacation, can no longer do that because it puts them over the 12-hour daily limit.
There has been a decline in morale of our staff because of the limits we have had to impose on overtime. They do their best to provide the structure and supervision our residents need, but because we cannot pay double time and remain financially viable for any extended period, their overtime hours have been reduced. The staff perception is that theyíre being penalized financially by this wage order because many would like to work additional hours.
The return to the 54-hour exemption is positive in every respect for the staff, children, and the agency. The childcare workerís job is extremely unique in that staff work directly in a real home, in a regular residential neighborhood. In many respects, they function as surrogate parents, except that our staff have a structured, organized behavior modification program for each child. They prepare the meals with the residents. They sit down at the table with our boys for meals, just as most of us do in a family setting. Weekday staff assist in the classroom and after-school homework. They may transport the boys in the evening to regional occupational or independent living skills classes. The weekend staff may take the residents on an outing, to shopping or museum or a movie.
This job does have its demands of working with emotionally disturbed children, and it has its demands of constant supervision, but itís also the kind of job that provides the staff with time to talk, sit, eat meals, supervise household chores, play games, and watch television with the residents.
I appreciate the opportunity to testify today about items that are of special concern to our very unique and essential services. I want to thank the IWC for seriously considering the changes in the daily overtime regulations that have been addressed here, as well as the changes we need in the requirements for on-duty meal periods and rest periods.
The success of any program is directly affected by the quality and the effectiveness of its staff. The approval of these changes by the IWC will have a positive impact on both staff morale, their opportunity to provide themselves with a better income while still doing the work with youth that they enjoy.
And I would like to add something to a request that you made, what would happen when the opposition comes up. I cannot speak for any other agency, but I will tell you it will drive us out of business. There will not be homes for 30 boys, there will not be jobs for 60 employees.
MR. MILLER: Good morning. My name is Mark Miller. Iím the executive director of Advant Group Ministries, a group home and foster home agency in Santa Clara County. Our agency runs six six-bed group homes for alcohol- and drug-addicted youth. Our agency began as a foster home in the 1930ís, became incorporated as a group home agency in 1967, and I myself joined the agency in 1972. We are currently the only residential program for drug-addicted youth in Santa Clara County.
And I also am here to ask the IWC to consider the change in the Work Order 5, specifically as it applies to group homes, to reinstate the 54-hour work exemption.
Community care group home -- Iím sorry -- community-based group home care is the primary treatment model for troubled, seriously disturbed, delinquent youth in California. Most troubled youth are placed in group homes because of disorders that have their roots in the trauma that these kids themselves experienced in their own very troubled families. Treatment for these kids is most effective when it takes place in very healthy, therapeutic families, or for more disturbed youth, in settings which will approximate a healthy family environment and still provide the necessary structure. Therefore, family-type group homes where the staff and the clients live within the same household, and yet where there is also a great deal of structure, behavioral control, and professional services, this becomes the treatment of choice for these needy youth.
Ideally, these programs include small treatment units, typically six kids with two or three staff living in a single residential home, a family-type atmosphere, not 8-hour shifts where people are living elsewhere and theyíre coming and going and simply working in the group home; rather, a small staff living and working with relatively few kids in a home-like setting, where meals are taken together and the typical activities of a family are shared in common.
Also important is the least restrictive environment, homelike, not institutional, and whenever possible, community-based is the best.
Finally, the most effective treatment builds on the intense interpersonal staff-client relationships as the very basis for treatment. Within this intense, intimate, family-type setting, other treatment strategies are added -- social work, special schools, family counseling, et cetera.
Given that this is the preferred way of treating troubled youth, it is important that there should not be labor and wage laws that discourage this format. Labor laws that enforce the 8-hour workday defeat the homelike nature of these programs. For as long as I can remember, the 54-hour workweek has been standard in group homes. A 54-hour workweek, with support staff providing necessary break times, allows two staff to provide the core staffing for each home. This is the traditional, time-tested format for treating kids who cannot live in their own families or even in foster homes. It is very effective. It is much more effective and more humane than putting these youngsters in more institutional-type settings if they donít require those settings.
The days are long for staff, thatís true. But as many have said, a lot of staff prefer that because the longer days mean shorter shifts and more days off during the week. And our staff are more than happy to work these shifts because they know that this is the type of treatment that is most powerful, most effective. I myself worked this type of a shift when I was a resident counselor at our agency in the early Ď70ís. I was convinced then that these shifts provided the best basis for care. Iím still convinced of this today.
But without the 54-hour exemption, our costs to provide the proper residential staffing increase significantly. Funding for this increase is simply not available within the current rate structure. The amount of this increase makes the operation of these small treatment units impossible to continue.
Let me emphasize, though, that the -- that the necessity of the 54-hour workweek is not for cost savings, but rather for preserving the quality of treatment that we provide our youth. We are asking that you not implement regulations that may very well eliminate group homes. Please do what you can not to create wage laws that make these types of small, family-like settings unaffordable to operate and therefore unavailable to troubled youth in California.
Thank you for listening to us today. Thank you for your concern.
COMMISSIONER DOMBROWSKI: Thank you.
MS. ALLISON: My name is Joanne Allison and I work at Five Acres, located in Altadena, California. Iíve been there for the past 23 years.
And Iím here today to ask that the IWC consider a change in the Wage Order 5 as it relates to group homes. Iím really not sure I want to -- weíve heard so much, and I donít want to really go over that. But -- all right.
The children we work with have a hard time trusting adults. And when staff are able to stay past their shift to finish problem-solving or do the reinforcers that are need, or just to help a kid through a really hard time, it helps them to -- to start to believe and to start to trust.
With the changes that have happened, we have not been able to stay past our shifts. We -- because of the overtime and the double time. So it has affected how we have to handle it with our children and helping them with these difficult moments. The thing is, you have to just kind of stop in the middle of everything.
Overtime has also made it so that some of our staff have not been able to work those changes that youíve heard about, the split shifts that theyíve had to deal with, or the longer days, because they were either students or -- or have families of their very own. And because of that, our children now have to experience losses of other people, and theyíve had enough loss in their lives.
Like they said about having the longer shifts, it did help for when people are sick or are on vacation and need the time, to have that covered, that we worked to cover each other so that we could manage our own lives as well as help manage the childrenís lives. And with the new changes, that is not feasible at this time.
Iím a direct line staff. I do the overnight. I have my meals in the morning with the children, because itís more of a family lifestyle for them and it helps them to have that cohesiveness of a family. If we have the meals away, the way theyíve been mandated, it would mean that people would be coming and going during these childrenís mealtime, a half-hour here and a half-hour there, and they would not have that consistency of having that one person there that prepares their meals and serves them, and be there to have the morning conversation that we have with them.
And so, because of some of these things, I ask that you reconsider or think about changing Order Wage Number 5.
For me personally, it has affected me a lot, because having been there -- and Iíve raised two children of my very own because I was able to work half, three and a half days, and then have three and a half days to raise my own children and still provide with what they needed -- now, with the changes -- Iím married to truck driver, and I see him now two days out of the month because of the way our schedules now fall, with the new schedule that I have. And itís really -- it wreaks havoc at work and it wreaks havoc at home right now. So the longer shifts did make it more feasible for everybodyís needs to be met, children, staff, and the agency.
So I thank you for listening to me today.
COMMISSIONER DOMBROWSKI: Thank you.
MS. STRICKLIN: I have a question.
COMMISSIONER DOMBROWSKI: Go ahead, Marguerite.
MS. STRICKLIN: Are you required to take off-duty meal periods?
MS. ALLISON: I beg your pardon?
MS. STRICKLIN: Are you required to take off-duty meal periods?
MS. ALLISON: No, weíre not required to, but I guess now I -- itís -- itís kind of hard for us to really understand some of the -- for staff to understand all of the political parts of it. But it sounds as if, at any time, because of the way the law is stated, that a staff could say, "I want my half-hour dinner break," and that someone would have to come in there and actually physically take over the duty of the children so that this person gets their half-hour off-duty break, which is not -- itís not something that can actually happen, because thereís ten children. You prepare a meal and you sit down and you have dinner, you talk about the day, you talk about things that -- they get to share something personal about themselves or something that was -- that happened really special for them. So --
MS. STRICKLIN: Thatís not what the order requires. It doesnít require you to --
MS. ALLISON: Well, I think thatís what some of the -- the administrators were talking about, with clarifying that on-duty meal as well the rest period, the ten minutes.
I work at night and the children are asleep, but theyíre -- and you monitor back and forth. Thereís not a time for me to -- thereís no one there for me to leave and physically take ten minutes in another building or somewhere. I take my breaks as Iím working --
COMMISSIONER DOMBROWSKI: Whatís your take?
MS. STRICKLIN: Well, Iím looking at the language of the order, and it says ten minutes. It doesnít say ten minutes off-duty for a rest period. It just take ten minutes.
MS. ALLISON: Um-hmm.
MS. STRICKLIN: And the meal period section says that there can be on-duty meal periods; they just have to be paid. So itís a question of whether or not itís -- youíre being required to take an off-duty meal period.
MS. ALLISON: Well, Iím -- Iím just going by kind of what weíre --
COMMISSIONER DOMBROWSKI: Sure.
MS. ALLISON: -- kind of hearing. And I know that it just would not be good for staff or kids, that if we had to break our dinner breaks up, where people are leaving in half-hour shifts to have a paid dinner break, when our meals are there with them because itís more family-like.
COMMISSIONER DOMBROWSKI: Next.
MS. McDONALD: My name is Harriett McDonald, and I work at Five Acres in Altadena.
The amazing thing about Joanne and I is, before this exemption was lifted, Joanne worked Sunday through Wednesday, I worked Wednesday through Saturday. Because of the change, our schedules are being blended in a way that, if Joanne wanted a vacation, I couldnít work for her without this exemption. If sheís ill for an extended period of time, I cannot work those shifts.
I think the question about the issue of off-duty meals has come up. If Iím working an overnight shift, I have ten children that Iím responsible for. If weíre fully staffed, hopefully, in the next cottage, which is attached to mine, the other ten children are also supervised by a staff. If that staff decides that they want an off-duty meal and they leave, Iím left with twenty children.
And we are -- because of this exemption being lifted and our schedules being changed, we have lost a lot of staff. And on certain nights, Iím watching twenty children.
Now, Joanne has worked for Five Acres for over twenty years. Iíve worked for ten years plus. Every major earthquake that has happened at night in southern California, I have been on duty. You canít imagine the Northridge earthquake, and I have a staff that has left the facility for a lunch.
There was one earthquake, the Whittier quake, where the unit next to mine had a relief staff, a staff that the children didnít know. All of those children who awakened in complete terror looked at the staff and came over, "Thereís Harriett." That entire unit came over to my unit with my ten kids because they knew me. They did not know the staff that filled in. So this example tells you how important it is to build and maintain relationships with -- with the children.
I did want to talk about the change in employee shifts. We talked about the split shift. Imagine going in to work from one oíclock to eleven oíclock at night, and you have to then return at 6:30 that morning to see the children off to school until 9:30. Maybe you live 50, 75 miles away from work. Itís now rush hour and youíre not back -- youíre -- youíre not due back to work until three. The schedules right now are just extremely, extremely hectic.
I have a term at work for some of our shifts. I call it "revolving door scheduling." You know, imagine -- you know, children need -- they need structure. And when you have different adults coming in every four hours, every five hours, it just -- it really creates havoc. On some of our shifts, I look around, there are four of us on a Sunday morning. It -- it just creates havoc. But the agency is doing that because theyíre trying to, I guess, follow these -- these policies that I really do not understand.
The longer shifts are definitely more -- more workable. The environment -- the environment for our children, these are children that generally very seldom have any visits. They have lived in complete chaos. And settling them in with no more than maybe two or three staff in a day is -- is really preferable. I mean, itís more like a home environment. I mean, imagine, you know, your children listening to you, then listening to an uncle or aunt that walks in and -- itís just -- itís -- itís sometimes crazy.
Forgive me. Iím really nervous, extremely so.
COMMISSIONER DOMBROWSKI: Thank you. Okay.
MS. McDONALD: I wanted to give you an example of my shift this week. Last week, on Friday night I worked from eleven oíclock at night till nine a.m. I had -- thatís till Saturday morning at nine. I had Saturday night off. I was due at work at 6:30 in the morning until 4:30. We have several holes in our schedule because of our schedule change. And Joanne was watching twenty children for, I guess, three or four shifts, so I volunteered to work. So I worked Monday night from 12 midnight to 7 a.m., Tuesday night 11 p.m. to 7:30 a.m., I worked last night 11 p.m. to 5 a.m., took a plane to come here. Because of our exemptions, thereís no one to work tonight. So, tonight at 11 oíclock, I will be back at work till 9 a.m. Saturday morning and expected to work 6:30 in the morning till 4:30 in the afternoon on -- on Sunday. I think that speaks for itself.
A point was made about less work time for employees. Increasing the number of days an employee works does not necessarily make less work. In many ways, it makes more. An example: on our overnight shift, we do a fifteen-minute check for all of our kids. When we have kids in crisis, which we have several that are on "save" and "shadow." Those are kids that are -- have injured themselves or other -- we do a more frequent check. In addition to that, we are cleaning, we are doing laundry, we are doing clothing inventories, we are charting on -- on our kids. Itís an incredible amount of work and is really much more preferable to do less days and do more work and have a sufficient time to replenish ourselves.
Thatís really all I want to say at this point, except for -- oh, yeah. The on-duty meal periods are very important.
COMMISSIONER DOMBROWSKI: Well, weíll take care -- weíll get a reading on that, okay?
MS. McDONALD: Okay. Okay, great.
COMMISSIONER DOMBROWSKI: Thank you.
All right. I assume thatís all of the parties in support.
Mr. Davenport, you want to bring up your representatives?
MR. DAVENPORT: Thank you.
COMMISSIONER DOMBROWSKI: I think it was already on, throughout.
MR. DAVENPORT: Is it on?
COMMISSIONER DOMBROWSKI: Yeah.
MR. DAVENPORT: Okay, good.
Thank you, Mr. Chairman. There are just the three of us here today. The -- and if I could make a -- sort of a brief opening remark, and then turn it over to the other two, and then summarize --
COMMISSIONER DOMBROWSKI: However you want.
MR. DAVENPORT: -- then Iíd like to proceed, with your permission. Fine.
We -- Iím Allen Davenport. Iím the director of government relations for the Service Employees International Union in California. We do represent workers in these group homes and in similarly situated facilities.
I have with me today Patty Gates, whoís an attorney with Local 535, and familiar to all of you on a number of wage and hour issues; Mr. Mark Stanford, who actually represents workers doing this work and will serve as our expert on how the work is done and how weíre getting it done these days.
I think Iíd like to start by saying that we believe that the Commission worked very -- as I said to a number of people -- worked very diligently during the past two years -- all of you are to be commended for the work that youíve done so far -- and in this case, I think, made a Solomon-like decision that not everybody is happy with. Certainly, we believe that the Legislature, in enacting the 8-hour day, intended that the 8-hour day apply to all working people.
You have made various kinds of exemptions under various circumstances for uniquely situated high-wage workers, or for workers in health systems where there would be a vote, so that there are ways that you have created, I think, a semblance of fairness in coming to a decision that a person who has a certain kind of circumstance can not suffer the problems of having to work in excess of 8 hours in a day.
So, we do believe that what you have in -- what you have created is a compromise. We do think that it is possible to do this work under 8-hour days. It is done by people we represent in 8-hour days. Itís also possible under a union contract to make other kinds of exceptions, where the workers have the opportunity to take all of their interests and concerns with all of the employerís and effectively make a deal.
So those are the circumstances that we would like to see prevail. And we are reluctant to endorse, and, in fact, would prefer that you not create a wage board to redo a lot of the work that the Commission, I believe, already did.
The other -- the thing that we are most interested in accomplishing here is getting these workers paid decent wages. And they are not. And that is a circumstance that has been referred to here before. And we certainly support, you know, appropriating sufficient funds to take care of the overtime obligations that the employers incur under the current circumstance. In that way, all of these schedule concerns that have been alluded to can be taken care of and the workers can start getting overtime pay where itís necessary, which will make up a substantial portion of the income that they need and deserve for what I think is some of the most valuable work that society does.
And it is always amazing to me that some of this kind of work is so consistently underpaid in our society. And I donít know -- and I applaud you for creating this kind of effort that perhaps could result in these workers getting paid more. And I would encourage you not to go back from that direction that you are -- you have actually participated in helping.
With that, I think I would like to turn it over to Ms. Gates to talk about some of the legal perspectives and why weíre not sure that -- oh, one other thing I did want to mention I think that sheís going to address too, but just -- just to sort of introduce it, we do appreciate Mr. Helmsinís remark about the limited scope of this hearing and of this particular petition, because we agree with that. We donít think that, as it was outlined in the agenda, that this should apply to the broad base of people that your agenda would lead us to believe it could.
So we certainly would like to see this discussion, however it goes forth, confined to the circumstances that Mr. Helmsin so adequately described.
MS. GATES: Hi. My name is Patty Gates, and Iím an attorney with Van Bourg, Weinberg, Roger & Rosenfeld, and weíre here today representing Service Employees International Union, Local 535. Local 535 has members who perform this kind of work.
And I want to say at the outset that what I heard here today in the room made me feel like I have to say this: that we honor and respect the work that all of these people who testified today do. And as a matter of fact, weíd like to see it better paid, and that thatís the motivation for us supporting the actions that the IWC has already taken.
The law offices that I work for represent people in overtime cases, in back wage cases, and look out after the interests of working people. Itís not in any way the position of the union or any of us whoíd like to see this wage -- this particular wage board not be formed. Itís not our point of view or even our position that we want to see any of these group homes close. We recognize that they do really good work for society, and we support that.
But what we need to say is that AB 60 was clearly a legislative signal that the 8-hour day held a special place in California, and that California has more protective legislation than the federal legislation when it comes to wages, hours, and working conditions. And I think one of the misconceptions here seems to be that these group home workers are relegated to an 8-hour day. Well, thatís just plain wrong. There is an exemption currently in Wage Order 5, and that exemption is found at 3(E) of the wage order. And the exemption basically says that workers can work within a 40-hour workweek any amount of overtime daily without getting any overtime pay.
And if you remember, this Commission, when it convened last year, heard many, many, many people in the healthcare industry come before it and argue that they wanted a 12-hour day. And there were long discussions about that. This industry has a 12-hour day, so long as they run three of them -- they could have three 13-hour days, two 13-hour and one 14-hour day, without incurring any overtime liability. That is a really significant exemption.
As a matter of fact, the workers donít even have to sign on to that exemption. They donít have to consent to it, and they donít get to vote on it. Thatís an exemption that is created especially -- and if you read the language of 3(E) of the wage order, youíll see that itís really a special exemption.
As a matter of fact, if you look at 3(F), youíll see that the ambulance drivers likewise have an exemption, but theirs requires consent. This is a nonconsenting exemption to the 8-hour workday, to overtime after 8.
Now, I think that itís important to look long-term and short-term at the issue. Right now there are many group homes who may have been running 48-hour weeks or 45-hour weeks who have to -- may be making some short-term adjustment to that. But one of the possible adjustments is that more money will be allocated and people can get their overtime.
The people that weíre talking about here mainly make between $8 and $9 an hour. Those people working 40 hours a week will make less than $20,000 a year. I think it would be a backward move to take away from people who have an opportunity, assuming that the funding is forthcoming -- and it may be.
Some of the witnesses here today said that they have been able to pay time and a half after 40, under the current funding strategy. One person testified that currently theyíre paying $6,000 more per pay period in overtime. Well, from the unionís perspective, thatís 6,000 more dollars that are going to low-wage workers and their pockets, which is what we support.
We think that the Commission has already conducted numerous hearings during 1999 and 2000 on this issue. After the hearings were held, the very next thing that happened was that the Commission reviewed -- I think Wage Order 5 was the most reviewed order, and I think we might all agree to that, those of us who attended the hearings. We heard more testimony on Wage Order 5 and the need for exemptions. And this Commission acted upon that, and this Commission made the choice to continue this exemption, which is really an unprecedented exemption, but to make the 40-hour workweek be the trigger rather than the 54-hour workweek, only for the daily overtime. I think thatís the decision thatís been made.
Iíve heard people testifying on meals and rest periods. I feel like thereís a misconception here about what a wage board could do on that. It sounds to me that what people really need is an opinion from our state Labor Commissioner. Under Section 17 of Wage Order 5, the Labor Commissioner even has the authority to exempt from rest periods under certain circumstances. And certainly, itís a time-honored tradition that the Labor Commissioner offer opinions on whether a particular employer is substantially complying with rest period and meal periods if the employer presents their circumstances to the Labor Commissioner.
I donít think a wage board is necessary for what this group seeks for meal and rest periods. And I think that it would be a backward step in the long run, on the overtime issue.
COMMISSIONER DOMBROWSKI: Go ahead.
COMMISSIONER BOSCO: Do you -- is it your position or any part of your position that this Commission, if it wanted to, could not institute a wage board and change the provision of Wage Order 5 relative to these folks? I mean, are you -- are you taking any position that we do not have the authority to do that?
MS. GATES: Whether this -- this Commission has the authority to convene wage boards on any wage orders, so long as you find that itís in the interest of the employees to do so.
COMMISSIONER BOSCO: I know that. But Iím saying, do you believe that we have the authority to change the hours and conditions in this industry back to the way it was or in any other way? I mean, I didnít hear you challenge that. But I want to get you on record. Do you feel that could be contested in court, or that it would be perfectly legal, or --
MS. GATES: I feel like, if this Commission, after the Legislature has -- I think the Legislature has acted in the past to cut back the authority of this Commission in the area of overtime. And one time in 1998 when this Commission acted to remove daily overtime from five industries, the Legislature stepped in and passed AB 60, saying that the IWC -- essentially saying the Legislature has a commitment to daily overtime, and that -- and they made that a matter of state law.
Now that theyíve acted and made that a matter of state law, I would say that this Commission would be treading on thinner ice, going back by regulation --
COMMISSIONER DOMBROWSKI: That same bill included the extension of their exemption and ordered the IWC to review it.
MS. GATES: The IWC was given limited review power, youíre correct. And -- but they were also -- given the power within the statement that the Legislature made about the ascendancy of the 8-hour day, and I think that the Legislature has given limited power to provide exemptions, and this board, this Commission has, in fact, exercised that power and provided this employer group with an exemption.
COMMISSIONER BOSCO: But is it -- is it or is it not your position that we are without the power to change Wage Order 5 in the manner that the petitioners have been asking us to?
MS. GATES: In the absence of a wage order?
COMMISSIONER BOSCO: If we go through the wage board --
MS. GATES: If we go through a wage order process, I think that you have the authority under the constitution to review wages, hours, and working conditions of any workers covered by any wage orders, so long as you do it in the best interest of the worker, the employee.
COMMISSIONER BOSCO: Thatís a little broader than what I was asking, but I guess we wonít pursue it any further.
I would like to ask our own counsel that at some point. But it doesnít have to be right now -- maybe it could be.
MS. STRICKLIN: You want me to answer?
COMMISSIONER BOSCO: Yes.
MS. STRICKLIN: The IWCís authority is both set forth in Labor Code 515 as well as 1173. When the Legislature passed AB 60, it never did anything to modify Labor Code 1173, which allows the IWC to review the hours, wages, and working conditions of employees in the state.
COMMISSIONER BOSCO: So we would have the power to do what the petitioners are asking us to do here.
MS. STRICKLIN: Assuming you found that there was some -- according to the statute, some prejudice to the working hours or conditions of labor, yes.
COMMISSIONER BOSCO: Thank you.
COMMISSIONER DOMBROWSKI: Mr. Stanford?
MR. STANFORD: Yeah. Iím Mark Stanford, SEIU 535. Iíve had the privilege of representing a number of these folks for some years now.
I donít think itís lost on this group about the dignity of their work. The fact is that over the years that Iíve represented these folks, the acuity and difficulty of the clients and children that theyíre dealing with has increased on a consistent basis, to a point where this work is even hazardous, on a regular basis, to people I represent all the time.
On the ground, whatever overtime folks are getting now is, in some cases, the only reason theyíre staying on the job. The employers have made much of the scheduling flexibility which is cramped by paying for the overtime. Itís certainly true that thatís a problem on the scheduling side, but itís also a matter of retention, that getting this overtime, which is increasingly available to people in the labor market weíre in, is often the only thing thatís keeping them at work and on these jobs, because theyíre not getting -- theyíre not making it on these wages that, on a statewide average, in the formula which funds these places, is something under $9 and might even be closer to $8, to the degree that the employers havenít actually delivered on the budget increases of last year.
So weíre talking about folks making under twenty grand here. And the union has had considerable flexibility in negotiating over the years for different arrangements and what overtime has arisen under the contract. And that works very well. We think thatís an arena where the workers and the employers can directly meet their mutual needs, and we encourage more of them to do that under a union contract.
The existing options have already been alluded to, the three 12ís and so forth. And Iím sort of compelled, given all this -- and everyone concurs about the importance of the work and the dignity of the job and so forth -- Iíd like to see the same dignity extended to what has already been determined to be these peopleís right under the law to this overtime, because that appears to be what -- the expendable piece when the rubber meets the road.
I donít have to tell you folks that giving folks their due, it can be inconvenient and costly. But the answer from the employers here appears to be, "Take it out of the employees." They sat here and told you this is $23 million that is supposed to be coming out of some folks who are making less than twenty grand a year on average on -- throughout the state. I donít get it. I donít think anybody believes that these folks are entitled to less because they happen to do this, or that, you know, this is some sort of monastic activity, separate from other work that people do.
And the Legislature and yourselves have said as much, that thatís not the case. You know, they donít show up at work with a sign that says, "Kick me; Iím working for a group home." Iím fairly upset about the whole tenor of this situation, because itís always the first place you go when thereís a problem with this kind of stuff, is, well, you know, "These people really donít expect very much," you know, "Theyíre students, they have other jobs." They shouldnít have to have other jobs. This is -- you know, this is a worthy occupation that deserves an appropriate full-time salary for people to do, so they stay involved in it and they continue to do this very necessary work, which is so drastically underfunded by the State of California.
I donít think anybody here thinks itís the job of the Commission to subsidize the industry in this fashion, behind the stateís underfunding of this stuff. Thatís -- thatís not okay. Thatís not -- you know, your job, as we all understand it, I believe, is to establish what folksí rights are, you know, to the standard of living here, rather than diminish that standard because the State of California isnít doing what it needs to do to take care of these kids and to take care of the people that deliver these services. That happens to be true in a number of areas. And today itís happening right here.
What else? I guess thatís about it from me. Iím really pretty upset that the solution to giving people what has already been determined to be their right is simply to have them contribute $23 million into this. And thatís why it shouldnít be happening.
COMMISSIONER DOMBROWSKI: A question, Mr. Davenport --
MR. DAVENPORT: Um-hmm.
COMMISSIONER DOMBROWSKI: -- if you know of anything going on in the Legislature regarding salary increases for these people?
MR. DAVENPORT: Well, the Alliance has put out a proposal to increase the budget for this particular operation by $23 million. And, you know, weíre listed in support on that.
And I -- I donít disagree with Mr. Helmsinís description of the budget process. On the 2nd day of March here, a lot is not known about whatís going on. The -- for anybodyís budget. We do have this electricity crisis, which is spending $45 million a day subsidizing peopleís electrical rates. Iím only talking -- weíre only talking about, you know, 12 hoursí worth of, you know, electrical -- excess electrical charges here, in a state that, you know, can well afford it.
And I think that -- so that there will be -- I donít think that the state people who are charged with putting these rates together are paying too much attention to, you know, how peopleís -- how wages are changing in the marketplace, something that -- I donít know -- they donít pay as much attention to you folks as we do, I guess, but in any case -- so it hasnít been considered. It needs to be considered, and we would advocate for it.
These workers are not making good money. They need overtime pay to help -- help out here. And I donít think itís a lot of money for the state, in the grand scheme of things here. And I donít know that it canít be done once we bring it to the attention of the appropriate people at this point.
There seems to be some short-term cash flow problem relating to solving the electricity crisis. Hopefully, by the time we get around to May, people will have a better idea of how much money weíre going to have next year so we can make some objective decisions about this. I think thatís the whole purpose of trying to get these bonds on the market.
So, anyway, thatís my analysis, that weíre hopeful. And we think that it would be a more aggressive -- frankly, I donít think itís a very good strategy -- I mean, Iím not running this campaign -- to, on one hand, say you need $23 million in front of one part of the government, and in another place, come over and try to say, "We havenít got $23 million, so make it cheaper." I mean, I would have preferred a more focused strategy on getting the money.
MR. STANFORD: Can I add something to this?
The whole -- the whole structure of how this -- these operations are funded is supposedly being revisited. And it isnít really making a lot of sense to me that the employers would move in this fashion at the expense of the employeesí rights to this overtime, and further reduce the necessity of paying people a living wage, at the same time their more or less cost-based funding approach -- funding system that exists is being reviewed, and, hopefully, completely demolished and rebuilt on a basis that reflects the real costs of what it takes to provide these services and pay people a decent wage to do it.
I think thatís counterproductive for the whole system to be running away from this, at the same time this whole system is being --
COMMISSIONER DOMBROWSKI: What kind of time frame is there, in your estimation?
MR. STANFORD: Well, they might be better put to explain that. The last time I heard about it, there was a study to be done on this, which was supposedly delivering a report this coming October. And last I heard, there was no institution involved in even putting that together. Itís a long project, itís a very complicated matter that has a lot of different players involved in it, and it isnít getting anywhere very fast. And it isnít going to affect the budget cycle coming up.
And if -- thereís probably not much likelihood that theyíre going to have anything in October. And I, frankly, think weíre in danger of two more years of the same inadequate system being used to figure out what the funding is, at least, before thereís a different system in place.
COMMISSIONER DOMBROWSKI: Dave, your take?
MR. HELMSIN: I think three years would be an optimistic guess at when that might happen. Itís bigger than just the rate system. Itís a broad system reform that is -- is limping along, at best, in both related activities and apparent priority with the administration. So itís going to be some time.
We wonít -- we canít exist under this set of circumstances for one year, much less three.
COMMISSIONER DOMBROWSKI: Tim?
COMMISSIONER CREMINS: Let me ask what may be a naïve question (inaudible).
I heard a lot of testimony about workers (inaudible) working those hours --
COMMISSIONER DOMBROWSKI: Your mike -- youíre mike.
COMMISSIONER CREMINS: Weíve heard a lot of testimony about workers working long hours, split shifts. If they have a problem at home and they have to go home, can they just say no and -- without fear of reprisal? Or what happens in that case?
MR. STANFORD: Say no to --
COMMISSIONER CREMINS: To their employer. They have to go home, if they have a problem at home. You hear a lot of problems with split shifts here today, long hours.
MR. STANFORD: My folks donít have split shifts under their contracts.
COMMISSIONER CREMINS: But these folks testifying here today that are not under your contract.
MS. GATES: The law -- well, the law on the subject of whether an employee can refuse long hours is very weak for the employee. In fact, the only work that you are protected by the law in refusing is work in excess of 72 hours a week. Short of that, your employer can discipline you or fire you for refusing overtime.
COMMISSIONER DOMBROWSKI: Any other questions?
COMMISSIONER DOMBROWSKI: Thank you.
MR. DAVENPORT: Could I just close briefly?
I donít know how the Commission is going to act on this, on this request, but if there is -- if there are three votes disposed to create a wage board in this area, we would -- we would recommend that it be a very limited and direct
-- given the way the notice was put out, we would recommend that it be limited to those circumstances that were, I think, described most accurately in the transcript and in what Mr. Helmsin said.
COMMISSIONER DOMBROWSKI: I donít think if we go ahead -- I donít think thereís any question thatís what we will do.
MR. DAVENPORT: All right. Weíd be happy to work with you on an appropriate order, if it comes to that. On the other hand, we think that the best strategy for improving conditions of these workers is to -- is to try to get money in the budget and get them paid right.
COMMISSIONER DOMBROWSKI: Thank you.
COMMISSIONER BOSCO: I think -- first of all, thank everyone for very good testimony, especially the people that have traveled a long way.
This presents the classic conundrum that this Commission always seems to be in, but even more so in this regard, because this is -- these people are totally funded by the government. Thereís no outside pot of money here, other than charitable givers. So weíre sort of within the family of government that we have to resolve this issue.
On one hand, as the SEIU points out, all of us would rather solve it that everybody make more money. Iím sure there isnít a soul that came up here on the other side that wouldnít agree with that. I mean, no one that appeared before us looks like theyíre pulling up in limousines and making a lot of money off of all this stuff.
So, having said that, the position weíre in is do we not do anything and put more pressure on the Legislature and the government, whether itís federal or state, but run the risk of losing some very valuable services out there with these group homes, or do we go ahead, commission a wage board, with the thought of going back to where we were, where you run the risk of people making less money and barely more than minimum wage, and the pressure is off the Legislature and others? Itís -- I donít think it puts us in a particularly enviable position.
My own thought is that, Mr. Chairman, we should go ahead with the wage board. Maybe it would provide an impetus, as we go through our process, which lasts, I guess, two or three months, or probably till July or whatever --
COMMISSIONER DOMBROWSKI: It can last longer than that. If we go to a wage board, it doesnít mean we have to, at the end of the day, do anything.
COMMISSIONER BOSCO: Maybe we -- maybe that -- you know, maybe we can sort of have a race to see whether we can get the money from the government, which would be all of our preference, or if we have to go back to where we were. But I canít see just really not doing anything about this.
So Iím going to move that we commission a limited wage board for the purpose of -- well, I wonít even put the words in, because Iím sure that has to be done legally -- but that we do commission a limited wage board in this regard.
COMMISSIONER DOMBROWSKI: Mr. Cremins?
COMMISSIONER CREMINS: I guess, on the motion --
COMMISSIONER DOMBROWSKI: Well, itís not a motion -- heís going to motion, but --
COMMISSIONER CREMINS: Okay.
COMMISSIONER DOMBROWSKI: -- weíre just in the comment state right now.
COMMISSIONER CREMINS: My understanding, this has been debated fairly extensively already, hasnít it? And weíve -- the board came to some conclusion.
COMMISSIONER DOMBROWSKI: We did debate it, and if you asked each of us individually, I think some of us would say that we may have been confused, because when we adopted it, we thought we were adopting what was federal conformity. And even -- even the industry side had, if my memory is right, signed off on what was adopted. But subsequently, when we got into it, we found it wasnít exactly what we thought. Thatís my personal -- so others may disagree.
COMMISSIONER CREMINS: Well, I guess the obvious question, in the interest of time, should we not -- if we are going to convene a wage board, at a bare minimum, confine it to those areas where youíre confused, as opposed to opening the whole process again?
COMMISSIONER DOMBROWSKI: That might be a big wage board.
COMMISSIONER DOMBROWSKI: That might broaden the order.
But I think what Mr. Davenport and Mr. Helmsin have described as the narrowing of it is -- does get to the gist of what weíve been talking about.
COMMISSIONER COLEMAN: Just to follow up on what Commissioner Bosco said, I think we have sort of two issues, one which we can directly control, which is a discussion on the working conditions and the hours of work and whether we do an exemption or not; the second being the funding issue, which, unfortunately, we donít have any control over. And I would hope that regardless of what the Commission does, that there would be a concerted coalition effort to increase the wages of this class of workers, because that is something I think we all agree. And regardless of what happens, theyíre not being paid enough.
So I agree, though, that we should take a look at this because during the discussions, it was somewhat unclear about this particular exemption, and there were a lot of things we were discussing. And I think some clarification through a wage board would be in order.
COMMISSIONER DOMBROWSKI: Harold?
COMMISSIONER ROSE: Yeah. I was in the -- involved in some of the decision-making on the wage board. We had exclusions, we took them away. Now we want to give them back. And I -- I just think that there has to be some other way to do this.
I hate to see the IWC balance anybodyís budget.
COMMISSIONER DOMBROWSKI: Any other comments?
All right. Commissioner Bosco, I think you want to make a motion.
COMMISSIONER BOSCO: I move that we commission a wage board limited to the application of Wage Order 5 to these assisted group homes.
May I ask before -- I shouldnít have -- could I ask counsel as to what the most limited motion we can do that would resolve the issue before us?
MS. STRICKLIN: Looking at 3(E) of the wage order, I think the employees are described as -- hold on just a second --
COMMISSIONER DOMBROWSKI: Mr. Davenport and Mr. Helmsin, if you want to come forward on this issue, please feel free to.
MS. STRICKLIN: Theyíre described as "adult employees or minors who are permitted to work as adults who have direct responsibility for children under 18 years of age receiving 24-hour care." You did have people testify with regard to adults and elderly, so Iím not sure what
MR. HELMSIN: Only that second testimony you heard from other providers. They were still group homes, still 24-hour. It only related to the meal period and the rest period.
If thereís an administrative way to resolve that, weíre more than happy to go that route. But our take -- we did talk with the administration about getting some ruling on the meal period and were told that it was in -- in the wage order in a way they didnít have flexibility on the meal period. So they would like some direction.
COMMISSIONER DOMBROWSKI: Well, can I suggest that we will include that in the wage order for the -- or the wage board, but that, Marguerite, we work to try to get the Department of Labor to resolve it? And in this order, I would reflect that itís our desire -- at least my desire -- and I donít know the others -- that Iíd have that resolved by the Labor Commissioner, if thereís any way possible to do that.
And again, I would -- if thatís agreeable.
MR. DAVENPORT: I think itís agreeable that -- as far as discussing overtime and meals, you want to go to the "adult employees or minors who are permitted to work as adults who have direct responsibility for children under," et cetera.
And then with the regard to the meals and rest periods only, you want to take in those other adult groups, right?
COMMISSIONER DOMBROWSKI: Okay. Okay.
COMMISSIONER BOSCO: Yes.
MR. DAVENPORT: Yeah. And we did actually work on some language here, if youíre interested in looking at it.
COMMISSIONER DOMBROWSKI: We would be. We would be.
MR. DAVENPORT: All right.
COMMISSIONER DOMBROWSKI: Give it over to Marguerite.
MR. HELMSIN: I havenít seen that language.
COMMISSIONER DOMBROWSKI: Give him a copy.
So we have a -- we have that motion on the table. Do I have a second?
COMMISSIONER COLEMAN: Second.
COMMISSIONER DOMBROWSKI: Bridget, could you call the roll?
MS. BANE: Commissioner Dombrowski.
COMMISSIONER DOMBROWSKI: Aye.
MS. BANE: Commissioner Bosco.
COMMISSIONER BOSCO: Aye.
MS. BANE: Commissioner Coleman.
COMMISSIONER COLEMAN: Aye.
MS. BANE: Commissioner Cremins.
COMMISSIONER CREMINS: No.
MS. BANE: Commissioner Rose.
COMMISSIONER ROSE: No.
COMMISSIONER DOMBROWSKI: Okay. The motion passes, three-two.
The process, as some of you know or may not know, is over the next -- letís see -- whatís today? March 1st?
MS. STRICKLIN: 2nd.
COMMISSIONER DOMBROWSKI: March 2nd. Letís say by -- whatís the March 30th -- March -- how many days are in March? I donít even remember.
MS. STRICKLIN: 31.
COMMISSIONER DOMBROWSKI: 31. March 31st, weíd like to have both labor and the employersí recommendations for participants in the wage board. My initial instinct is to -- this is something to talk to your people afterwards, but my initial instinct would be to keep it at the size that weíve found that seemed to work, with just five on each side with two alternates.
And again, as weíve done this in the past, if you could get those names in as quickly as you can to Bridget, over at the IWC, so that weíre not sitting here on April 1st trying to get names.
And then at the next hearing, we will name that wage board and have the official language with their direction.
MS. STRICKLIN: Sure.
COMMISSIONER DOMBROWSKI: And then go from there.
And in the meantime, as I think everybody up here agrees, please continue your efforts on the funding side, together.
MR. HELMSIN: Most assuredly. And I assume that weíll have an opportunity to comment with staff on this language, on adopting this language.
COMMISSIONER DOMBROWSKI: Yeah. Yeah.
MR. HELMSIN: Okay, fine. Great.
COMMISSIONER DOMBROWSKI: Thank you.
Is there any further business anyone wants to bring up?
COMMISSIONER DOMBROWSKI: Okay. Do I have a motion to adjourn?
COMMISSIONER ROSE: I move we adjourn.
COMMISSIONER DOMBROWSKI: Do I have a second?
COMMISSIONER COLEMAN: Second.
COMMISSIONER DOMBROWSKI: All in favor, say "aye."
(Chorus of "ayes")
COMMISSIONER DOMBROWSKI: We are adjourned.
(Thereupon, at 12:11 p.m., the public
hearing and meeting was adjourned.)
CERTIFICATE OF REPORTER/TRANSCRIBER
I, Cynthia M. Judy, a duly designated reporter and transcriber, do hereby declare and certify under penalty of perjury under the laws of the State of California that I transcribed the two tapes recorded at the Public Hearing and Meeting of the Industrial Welfare Commission, held on March 2, 2001, in Sacramento, California, and that the foregoing pages constitute a true, accurate, and complete transcription of the aforementioned tapes, to the best of my ability.
Dated: March 10, 2001 ______________________________
CYNTHIA M. JUDY