"Domestic workers' vulnerability to exploitation and abuse is
deeply rooted in historical, social, and economic trends. Domestic
work is largely women's work. It carries the long legacy of the
devaluation of women's labor in the household. Domestic work in the
US also carries the legacy of slavery with its divisions of labor
along lines of both race and gender. The women who perform domestic
work today are, in substantial measure, immigrant workers, many of
whom are undocumented, and women of racial and ethnic minorities.
These workers enter the labor force bearing multiple
disadvantages."
- Home Economics, The Invisible and Unregulated World of
Domestic Work, by Linda Burnham and Nik Theodore for the
National Domestic Workers Alliance
In the 1970s, under the leadership of Melnea Cass, an
African-American woman and civil rights leader, Massachusetts
granted domestic workers the right to collectively bargain,
eligibility for workers compensation, the right to be paid the
state minimum wage and coverage by the state's overtime laws. In
December 2010, the Massachusetts Coalition for Domestic Workers
continued her work, starting the modern movement for domestic
workers.
On July 2, 2014, Massachusetts took a lead in inclusivity and
civil rights. General Laws c. 149, § 190 brought domestic workers
"out of the shadows." Demonstrating the need for this new law and
its popularity, it passed in one legislative session with a
unanimous Senate and bipartisan veto majority in the House.
Despite the popularity and passage with virtually no opposition,
disparaging misconceptions and myths about the new law abound. The
authors of this article aim to correct the myths and explain why
employee advocates and the management bar should appreciate this
new law.
The bill ends 'at-will' employment
This reaction is unfounded when considered in the proper
context. It is aimed at two sections of the new law:
- Section 190 (i) requiring employers of
domestic workers have 14 days' notice before termination and those
who live in the employer's home have 30 days' notice before losing
their home and livelihood; and
- Section 190 (j) requiring a written agreement
spelling out the terms of employment, including (but not limited
to): rate of pay, including overtime; additional compensation for
added duties or multilingual skills; working hours, including meal
breaks and other time off; and provisions for days of rest, earned
sick days, vacation days, personal days, holidays, transportation,
health insurance, severance and yearly raises; any fees or other
costs, including costs for meals and lodging; the responsibilities
associated with the job; the right to collect workers compensation
if injured; and the required notice of employment termination by
either party.
Employment at-will is entrenched in the United States. It allows
employers to terminate the employment relationship for any reason
and without notice. The employee has the same right to end the
relationship. Because the employee is the individual with much less
power, this "equality" calls to mind Anatole France's quote, "In
its majestic equality, the law forbids rich and poor alike to sleep
under bridges, beg in the streets and steal loaves of bread."
Discussion about the injustice to labor of this interpretation is
for another day.
Our point is that, before proclaiming the end of employment at
will, a little perspective is needed. Since the adoption of
employment at will, the law has spawned a plethora of exceptions to
the at-will rule, both through statute and the common law,
including a public policy exception; exceptions banning
discrimination based on race, ancestry, gender, sexual orientation
and other protected classes; and exceptions banning retaliation
against whistleblowers. Beyond these widely known exceptions, it is
also illegal to fire someone for having made a claim under the
workers' compensation statute (M.G.L. c. 152, § 75B), for refusing
to perform an abortion (M.G.L. c. 112, §12I), for a public employee
donating blood (M.G.L. c. 149, § 33D), for expressing breast milk
((29 U.S.C. § 207 (r)(1)), and, most recently added, for being a
victim of domestic violence (M.G.L. c. 149, §52E). So, employment
at-will "as we know it" already has many exceptions - one could
argue so many that it swallows the rule.
In any event, many employees are subject to non-competition and
non-solicitation agreements. These agreements generally alter the
employee's side of the at-will relationship by prohibiting an
employee from moving to a competitor for a period of time. These
agreements place significant practical constraints on the
employee's ability to leave for any reason or no reason.
Sections (i) and (j) are right in character with the other
exceptions.
There is no just cause requirement to fire a domestic worker. The
modification to employment at-will is the notice provision. The law
requires that live-in workers only will be provided with 30 days
notice when they are to be terminated without cause. This was
intended to address both the power dynamic and the unintended
consequence of "at-will" employment for live-in workers: instant
homelessness. Furthermore, the law allows an employer to avoid the
notice provision entirely if the employer pays two weeks'
severance, or if necessary, provides a written good faith
allegation of abuse, neglect or other harmful conduct.
The second modification, the written agreement requirement, only
applies to workers who work more than 16 hours a week. The
provision was a direct response to employer requests that had
nothing to do with the care of the house or family, job creep
(increase of duties without corresponding increase in pay). These
provisions were to assure clarity and boundaries. The agreement
encourages communication at the beginning of the relationship that
will help both the family and the worker.
The bill forces use of an agency
Given the pre-enactment state of the law, so confusing and full
of issues and so lacking in guidelines, it is unlikely that any
family or employer understood what the worker and employer
obligations were. Both workers and employers designed the bill. On
June 16, 2012, the Massachusetts Coalition for Domestic Workers
hosted a meeting of more than 100 workers and employers in five
languages with one simple question: "What is respect and dignity
for you?" That list was created together by workers
employers.
The record-keeping requirements of the new law overlap with the
requirements that are already required. The law's requirements for
rest periods, written agreements, obligation to pay for meals and
lodging, earned sick and vacation time, and privacy draw simple
boundaries. To assist employers of domestic workers (who are not
corporate agencies themselves), the law requires a sample agreement
be posted on the attorney general's website along with a sample
notice that employers are to give to workers. The agreements, if
followed and completed will help employer to comply with the vast
majority of the law. In addition, employers will also have access
to a sample notice of rights (also required by the law M.G.L. c.
149, § 190 (m)) that they will provide to workers. While it is
tempting to resist them because of a common view that a domestic
worker is similar to a teenage babysitter or a relative who comes
to help with care giving, if a family wants to employ someone for
care giving, they have not adopted a family member. They have
engaged an employee.
You can't monitor your nanny
Untrue. Section 190 (h) specifically addresses communication and
bathroom monitoring. And does not go beyond the protections other
workers already have. Massachusetts' citizens generally are
protected from "unreasonable, substantial or serious interference"
of their privacy. These rights are enforceable in the superior
court and successful litigants are entitled to an award of damages.
M.G.L. c. 214, § 1B. Other employers are subject to this law.
(Bratt v. International Business Machines Corp., 392 Mass.
508, 508, (Mass. 1984).)
The new law specifically addresses issues particular to domestic
workers to clarify boundaries for privacy purposes. Unlike a worker
who goes to an office to work, the domestic worker generally goes
to a private home. The privacy protections prevent cameras in a
person's personal bathroom and bedroom (if that type of personal
living space is provided to the worker). They also prevent
listening to private calls. An employer could still tell a worker
not to use his or her cell phone during work time except for
emergencies.
The law also combats human trafficking. Domestic workers are the
second largest group of victims to be trafficked into this country
behind sex trafficking victims. Surveillance by an employer is one
way to control trafficked victims - without the means to report
their situation secretly, victims will remain unable to extricate
themselves from their situation.
The bill will hurt immigrant workers
Likely false. The authors know of no study that has shown that
immigrant workers are harmed by being given the rights they now
have in Massachusetts. Thus far, in the four states that have
enacted protections for domestic workers, there is no evidence of a
lack of job growth. In any event, it's unlikely that the few, and
small, boundaries on employers of domestic help will stench the
ability of workers who want to find work and employers who want to
hire them to employ them. Notably, this industry has is staying
power. At some point, a domestic worker touches all of our lives.
Many people couldn't function without assistance with house
cleaning or nannies for their children. Indeed the projected growth
nationwide for the children care market is expected to go up 14
percent per year from 2102 to 2022. (US Department of Labor
http://www.bls.gov/ooh/personal-care-and-service/childcare-workers.htm.)
The new law will not affect the ability of a family to employ a
casual babysitter. The term "domestic worker" is specifically
defined to exclude an individual whose services primarily
consist of childcare on an intermittent and irregular basis. (29
CFR 552.5.)
Expanding the commission's jurisdiction duplicates rights
False. Chapter 151B, the state employment anti-discrimination
statute, only applies to employers with more than six employees. In
most cases a domestic worker is the only employee, putting him or
her outside the purview of Chapter 151B and the Massachusetts
Commission Against Discrimination (MCAD). Prior to the law's
passage there was a clause that specifically excluded those "in the
domestic service of another," meaning virtually all domestic
workers had no access to the MCAD.
While Chapter 214, Section 1C does provide that all individuals of
the commonwealth are to be free from sexual harassment, and the
Massachusetts Equal Rights Act Chapter 93, §§ 102 and 103,
prohibits discrimination protections due to race, national origin,
age, disability and gender, the recourse for both is filing a
complaint in the Superior Court. Most domestic workers lack the
funds to retain an attorney, pay the filing fee, and bring suit
against their employers. Giving the domestic worker access to the
commission allows them to file a charge for free. It also gives
them access to the commission's procedures that offer assistance to
those without counsel, including the conciliation process and an
investigative hearing before a finding is made. The informality of
the commission is actually ideally suited to address the claims of
a domestic worker against a family.
Conclusion
This new law is a long-awaited conferring of rights to some of
the commonwealth's hardest working individuals. It provides them
rights and recourses that many workers already enjoy. It also
attempts to address the particular vulnerabilities of individuals
whose job is to "care" in a private home. The law will only
increase communication and negotiation between domestic workers and
their employers, families or other entities, empowering both the
families and the workers to answer the question "What is respect
and dignity" for their relationship.