Rules and responsibilities: A review of employment practices for domestic workers

Issue March/April 2017 By Stesha Emmanuel

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.

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