The often recited proverb that it "takes a village to raise a
family" is no less applicable in today's modern society than it has
been for centuries. Today, "villagers" are often domestic workers
who provide in-home services to private employers. Until recently,
those domestic workers who have been underpaid, overworked and
exposed to discrimination and harassment have had little recourse.
In order to understand the vulnerability of domestic workers, one
need only look back as recent as 2012 when a Massachusetts couple
paid an immigrant nanny $3,000 for 13 years of service. The
enactment of the Domestic Workers' Bill of Rights in Massachusetts,
the fourth state in the nation to directly address the issue, seeks
to protect those "villagers." The law went into effect on April 1,
2015.
The Massachusetts Domestic Workers' Bill of Rights is
comprehensive, differs from other rights available to employees in
Massachusetts, and expands the duties and obligations of employers.
Consequently, there are a number steps, if neglected, that could
expose current and future employers to litigation.
I. Defining Domestic Workers
Domestic workers are individuals, including independent
contractors, who receive compensation from an employer to provide
any service of a domestic nature within a household. These services
include babysitting (over 16 hours weekly), childcare, housekeeping
and in-home caregiving. While the statute protects domestic workers
regardless of immigration status, the statute does not apply to
domestic workers employed through a state-regulated staffing
agency.
II. Mandatory Statutory Obligations
At the outset of employment, the employer must provide domestic
workers with a Notice of Rights that outlines all applicable state
and federal rights. You can find one entitled "Legal Rights of
Domestic Workers" on the Massachusetts Office of the Attorney
General's website. It is a "must read" for domestic workers and
their employers. It provides a comprehensive yet easily
understandable summary of the legal issues attendant to domestic
employment, such as payroll and timekeeping record requirements,
job evaluations, minimum wage and overtime compensation, rest
periods, pay deductions, public benefits (social security, income
taxes, unemployment benefits), sick time, vacation and other leave,
phone and internet access, privacy and freedom to come and go,
injuries at work, protection for immigrant workers, special
protections for live-in workers, and the impermissibility of
discrimination and retaliation.
In concert with the Notice of Rights, the employer must also
provide a domestic worker who works 16 or more hours a week with a
written agreement that outlines information about compensation,
work schedule and job duties, leave and termination, and other
topics listed in the Notice of Rights. Both documents must be
produced in a language that the domestic worker understands and
signed by both parties. Failure to execute a written agreement will
expose the employer to future litigation about the terms of the
employment, with the scale tipping towards the domestic worker.
For the purposes of this article, the following provisions will
be highlighted: (1) minimum wage and overtime compensation; (2)
rest periods; (3) workers' compensation insurance; and (4)
discrimination.
1. Minimum Wage and Overtime Compensation
The Domestic Workers' Statute clarifies that domestic workers
must be paid at least the Massachusetts minimum wage. As of January
1, 2017, the state minimum wage rose to $11.00 per hour. Domestic
workers must also be paid one and one-half times their regular
hourly rate for all hours worked in excess of 40 hours of each work
week. Employers should recall that Massachusetts Wage and Hour and
Overtime Statutes allow employees who are not appropriately
compensated to back pay, treble damages, attorneys' fees and
litigation costs.
2. Rest Periods
A domestic worker who works 6 or more hours in a day has the
right to a 30-minute meal or rest break every workday. If a
domestic worker is on duty for less than 24 hours, all meal, rest,
and sleeping periods must be paid unless the domestic worker has no
work duties and is allowed to leave during those times. If a
domestic worker is required to be on duty for a period of 24
consecutive hours or more, all meal periods, rest periods and sleep
periods constitute working time, unless the domestic worker and
employer have previously entered into a written agreement to
exclude up to 8 hours.
Whether rest periods are paid or unpaid should be negotiated at
the time of hire, but generally breaks of less than 20 minutes must
be paid. During rest periods, the domestic worker must be free of
all work duties and be allowed to leave the workplace. A domestic
worker may choose to work during a rest period, but if that
happens, the domestic worker must be paid.
A domestic worker employed for 40 or more hours per week must be
given at least one full day (24 hours) off each week and 2 full
days (48 hours) off each month. Such a domestic worker may agree to
work during a previously designated rest period provided that the
domestic worker and employer sign an agreement which specifies the
rest period the domestic worker agrees to work, is written in
language easily understood by the domestic worker, and is executed
prior to performance of services during the previously designated
rest period.
3. Workers' Compensation Insurance
All employers in Massachusetts are required to carry workers'
compensation insurance and this includes employers of domestic
workers who work over 16 hours weekly. The absence of workers'
compensation insurance could result in civil fines or criminal
penalties. For example, by statute, if a domestic worker is hurt on
the job and the employer does not carry workers' compensation
insurancet, the employer becomes, in effect, strictly liable for
the worker's injuries. The cost of "nanny insurance" is a small
price to pay to avoid a potentially much bigger loss and
penalties.
If a domestic worker is hurt on the job but only sustains
medical injuries for less than five days, employers should report
the incident directly to their workers' insurance company to cover
medical costs. If a domestic worker is totally or partially
disabled due to a work-related injury and unavailable to work for
more than five days, like for all other employees, the employer
must complete a Form 101 with the Department of Industrial
Accidents and the domestic worker may be eligible for lost wages
and medical costs.
4. Discrimination
Given the poor treatment of domestic workers in the past, the
Legislature carved out special provisions to allow domestic workers
to level the balance of power. Domestic workers may bring a claim
under G.L.c. 151B, § 4 for discrimination based on sex, sexual
orientation, gender identity, race, color, age, religion, national
origin or disability that results in an hostile or offensive
working environment or unreasonably interferes with the domestic
workers' performance. Domestic workers may utilize Chapter 151B
even if the employer has fewer than six employees, the threshold
typically required for MCAD jurisdiction.
III. Looking Ahead
Employers and domestic workers alike are encouraged to carefully
review the Notice of Rights of Domestic Workers and seek guidance
from the Massachusetts Office of the Attorney General and private
attorneys with any questions they may have. The legal rights of
domestic workers have been expanded and many workers and employers
are not yet aware of the new legal landscape.