Wednesday, June 9, 2010

Historic Domestic Worker “Bill of Rights” About to Pass in New York

New York is on the threshold of being the first state to ever enact employment legislation designed to provide wage and hour and anti-discrimination protections to domestic workers. On June 8, 2010, the New York State Senate passed by a party-line vote of 33-28 with one Republican voting for passage, the so-called Domestic Workers Bill of Rights, S. 2311 (available here), which provides certain employment rights and protections to so-called “domestic workers.” The State Assembly passed a less comprehensive bill, A. 1470, in 2009. The two bills now must be reconciled.

The statute defines a “domestic worker” as “a person employed in a home or residence for the purpose of caring for a child, serving as a companion to a sick, convalescing, or elderly person, housekeeping, or for any other domestic service purpose.” Thus, most nannies would be covered, as well as most maids.

Excluded from the definition of “domestic worker” are individuals who are engaged in providing “companionship services,” as defined in Section 213(a)(15) of the FLSA, as well as any individual who is employed by an employer or agency other than the family or household using his or her services. See Long Island Care at Home, Ltd. v. Coke, 127 S. Ct. 2339 (U.S. 2007) (holding that home health workers who provide companionship services to the elderly and infirm are not protected by federal minimum wage and overtime pay laws). The federal DOL in its Spring 2010 Regulatory Agenda indicates that it intends to consider whether the scope of the companionship exemption as currently defined in the regulations continues to be appropriate in light of substantial changes in the home care industry over the last 35 years.

In New York, in the case of home care companions, the state follows the FLSA overtime exemptions, but overtime hours must be paid at no less than one and a half times the New York state minimum wage, and overtime hours do not have to be paid at the usual one and a half times the employee’s regular hourly wage if that rate is higher than the minimum wage. See New York Minimum Wage Order for Miscellaneous Industries and Occupations, DOL § 142-2.2 (July 2005), available at http/ Thus, in the case of companies, large and small, that employ maids, and then retail their services to households, those domestic workers / maids get no protection under this proposed legislation. Additionally, “domestic worker” does not include “au pairs” as defined in 22 C.F.R. § 62.31.

Among the rights and protections for covered “domestic workers” are the following:

1. The individual is entitled to at least 24 consecutive hours of rest in each calendar week, and shall not be required to work on the day of rest, and if the individual agrees to work on said day of rest, the individual shall be paid at an overtime rate.

2. Any such individual who regularly works for at least 20 hours per week for the employer is entitled to paid time off for six designated holidays, e.g., Christmas Day.

3. Any such worker whose regular schedule is at least 40 hours per week for the employer shall be entitled to seven days of paid time off for sick leave each year. Any such worker whose schedule is at least 20 hours per week but less than 40 is entitled to four days of paid time off for sick leave.

4. Any such worker who works at least 40 hours per week is entitled to five days paid time off for vacation and those who work at least 20 hours but less than 40 are entitled to three days paid time off for vacation. A vacation shall be agreed upon with the employer at least 30 days in advance of the first vacation day.

5. Such workers are entitled to written notice of termination 14 days before their final day of employment, and in the event an employer fails to give such notice, the worker is entitled to backpay for the notice period and the value of the cost of any benefits to which the worker would have been entitled during the notice period. The notice requirement does not apply to employees who are convicted of committing an unlawful act of theft or destruction of property or when the employer has a reasonable good faith belief that the employee has committed assault, neglect, or abuse in the workplace with the burden of proof of such reasonable belief on the employer.

6. The proposed legislation provides for criminal penalties, as well as a civil action which may be commenced within six years by either the Labor Commissioner or the Attorney General.

7. The proposed legislation provides protections under the anti-discrimination laws.

8. The proposed legislation provides for eligibility for unemployment compensation.

9. The proposed legislation provides for eligibility for workers’ compensation.

The National Labor Relations Act excludes domestic workers from its protections. The FLSA does not cover domestic workers. And, the New York State Human Rights Law currently does not protect domestic workers against invidious discrimination.

Thanks to the Workplace Prof Blog for bringing this to our attention.

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