November 29, 2010 Domestic Workers’ Bill of Rights

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KEEPING YOU INFORMED…

The New York State Legislature has enacted the Domestic Workers’ Bill of Rights, effective November 29, 2010. This law extends certain labor standards and protections to domestic workers.

The law defines “domestic worker” as “a person employed in a home or residence for the purpose of:

  • caring for a child;
  • serving as a companion for a sick, convalescing or elderly person;
  • housekeeping; or
  • for any other domestic service purpose.

 

Excluded from the definition are individuals who:

  • work on a casual basis;
  • provide companionship or babysitting services and are not employed by the family or household using their services (i.e., they are employed by a company or agency); and/or
  • are relatives through blood, marriage or adoption of the employer or the person for whom the employee is providing services pursuant to a government-funded or administered program.

 

The law requires that a domestic worker employed by an individual or corporation be provided with the following benefits:

  • Minimum wage. The legislation requires that any domestic worker be paid a minimum wage regardless of whether he/she lives in his/her employer’s home. The current state minimum wage is $7.25 per hour.
  • An eight hour work day. In the absence of a contract or agreement establishing the domestic workers’ hours of work, a domestic worker has the right to refuse to work beyond eight hours in a day without additional compensation. This provision does not affect those situations in which an employer and domestic worker have agreed that a day’s work exceeds eight hours.
  • Overtime for work beyond 40 hours in a week, or work in excess of 44 hours in a week if the domestic worker resides in the employer’s home. This overtime must be paid at a rate of at least one and one-half times the employee’s normal wage rate. In the absence of an agreement to the contrary, a domestic worker who works in excess of eight hours in one day is not entitled to overtime at the one and one-half times rate if he/she does not work more than 40 or 44 hours in that week.
  • At least 24 consecutive hours of rest each calendar week, which should, when possible, coincide with the employee’s traditional day for religious worship. A domestic worker who voluntarily agrees to work on his/her rest day must be compensated at the overtime rate of time and one-half for all work performed on that day.
  • After one year of work with the same employer, at least three days of rest in each calendar year to be paid at the employee’s regular rate of compensation.

 
In addition to the wage and leave benefits, the Legislature has amended the Workers’ Compensation Law to extend disability benefits to domestic workers who work in a private home for fewer than 40 hours per week. These workers were previously excluded from coverage requirements.

The law creates a separate cause of action against an employer that engages in unwelcome sexual advances, requests for sexual favors or other sexual conduct when submission to or rejection of this conduct is a term or condition of employment, is used as the basis for employment decisions or creates an intimidating, hostile or offensive working environment. The law also makes it illegal for an employer to subject a domestic worker to harassment based upon gender, race, religion or national origin where the harassment creates an intimidating, hostile or offensive working environment.

Although not required by the statute, we recommend that employers establish an internal reporting procedure for a domestic worker to complain if the worker believes that (s)he has been subjected to harassment in violation of the statute. This will allow the employer the opportunity to promptly address and resolve the complaint without involvement of the New York State Division of Human Rights, the agency with jurisdiction to address most domestic worker complaints of harassment.

New York’s Labor Law already requires employers to provide their employees with written notification of the employee’s hourly rate at the time of hiring, overtime rate and regular pay day” Domestic workers are also covered by this requirement. Employers must obtain a written acknowledgement from each employee of the receipt of this notice. The Labor Law further requires that employees, including domestic workers, be notified in writing of the employer’s policy on sick leave, vacation, personal leave, holidays and hours. Upon termination, an employee must be notified of his/her exact termination date, as well as the cancellation date of any employment benefits.

Employers are required to maintain payroll records showing the hours worked, gross wages, deductions and net wages for each employee, including domestic workers. Employees must be furnished with a copy of same each time they are paid. Employees have six years to assert any claims alleging a violation of the State laws governing minimum wage and overtime compensation. We recommend, therefore, that employers maintain time, attendance (including leave time taken) and payroll records for a minimum of six years.

We also recommend that domestic workers be provided with a list of their assigned job duties, along with a directive not to perform any duties outside of their scheduled work hours without first obtaining employer consent to do so. In order to avoid potential overtime liability, an employer that becomes aware of work being performed outside of an employee’s scheduled work hours should prevent the employee from continuing to do so.

If you have any questions regarding this legislation, please do not hesitate to contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL I.INDERSTANDING OF CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE V/ITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP, 2010