The Massachusetts Domestic Workers' Bill of Rights, Mass. Gen. Laws c. 149, §§ 190-191, went into effect on April 1, 2015, significantly changing the employment relationship between employers and their domestic employees. Key provisions of the statute and actions that need to be taken now are highlighted below.
Who Is Covered by the Law?
This new law applies to any individual or entity that employs one or more "domestic workers." A domestic worker is any individual who performs "work of a domestic nature within a household," including housekeeping, house cleaning, home management, nanny services, caretaking, laundering, cooking and home companion services. Staffing, employment and placement agencies are not considered employers under the law. Similarly, the law does not apply to personal care attendants providing services to the disabled and elderly under the MassHealth personal care attendant program nor to individuals providing childcare services on a casual, intermittent or irregular basis (e.g., babysitters whose primary job is not childcare).
The law requires employers to provide domestic workers with "notice of all applicable state and federal laws that apply to domestic workers." The Massachusetts Attorney General's office, which is charged with enforcing most of the new law, has made available on its website sample forms in English, Spanish and Portuguese that comply with this requirement.
In addition, for employees expected to work more than 16 hours per week, employers must provide the domestic worker with notice in writing containing the following information:
The Attorney General has recently issued a Model Domestic Worker Employment Agreement and a Sample Record of Information for Domestic Workers that may be used to provide this required information. These template forms are necessarily generic, however, and include information that may be irrelevant in particular situations -- for example, referring to the rights of live-in domestic workers when no such individuals are employed. Written agreements more appropriately tailored to the employee's particular circumstances often will better serve the employer's interests. Regardless of the form used, the statute requires employers to retain a copy of the notice for three years from the date services were performed.
Hours of Work
Employees working 40 or more hours per week must have at least 24 consecutive hours off in each calendar week and 48 consecutive hours off during each calendar month. A domestic worker may voluntarily agree to work on a day of rest only if the agreement is in writing and if the employee is paid at a rate of time and one-half for all hours worked.
The law also makes clear that employees on duty for shifts of 24 hours or less who do not reside on the employer's premises must be paid for all working time, which includes meal, rest and sleep periods, unless the employee is free to leave the premises and is relieved of all work-related obligations. Unless otherwise agreed to in writing, all meal, rest and sleeping periods constitute working time for employees on duty for 24 hours or more, although the employer and employee can agree to exclude from working time a regularly scheduled sleeping period of not more than eight hours.
Note that, under existing law, employees working six or more hours per day are entitled to a 30-minute unpaid meal break. The employee may voluntarily waive this break (we recommend obtaining such a waiver in writing) but must be paid for time worked.
Wage Deductions and Recordkeeping
An employer may deduct for food and beverages from a domestic worker's wages if the food and beverages are voluntarily and freely chosen by the domestic worker. If the domestic worker cannot easily bring or prepare meals on premises, the employer may not make such a deduction. The employer may also deduct for lodging, but only if the employee voluntarily accepts and actually uses the lodging. The employer cannot deduct for lodging expenses if it requires the employee to reside on the employer's premises or in a particular location. Deductions for food and lodging will continue to be subject to certain maximum limits established by state regulations, and the employee's consent to those deductions must be in writing.
Like other employers, employers of domestic employees are required by state and federal law to maintain a record of the employee's wages and hours worked. The Attorney General's website contains a sample time sheet that can be used to capture hours worked.
A domestic worker may request a written evaluation of his or her work performance after three months of employment and annually thereafter. Note, however, that the statute does not actually require the employer to provide the employee with such an evaluation. If one is provided, it is subject to the Massachusetts Personnel Records Act which, among other things, provides the employee with the right to inspect and dispute the evaluation.
In one of the most drastic departures from current law, an employer must now provide a domestic employee who resides in the employer's home who is fired "without cause" with written notice of the termination and either at least 30 days of lodging or two weeks' severance pay. The law does not define "cause," but it does provide that neither notice nor severance are required when good faith allegations are made in writing that the domestic worker has abused, neglected or caused other harmful conduct against the employer or the employer's household. The statute does not require termination notice or severance for domestic workers who do not reside in the employer's home.
Right of Privacy
The law prohibits employers from restricting, interfering with, or monitoring a domestic worker's private communications or taking the employee's documents or personal effects. It further prohibits employer conduct that constitutes forced services or human trafficking under existing law.
Prohibition Against Sexual and Other Forms of Harassment
Domestic workers may file claims of harassment with the Massachusetts Commission Against Discrimination. The law also provides that female domestic workers are entitled to job-protected leave for the birth or adoption of a child under the Massachusetts Maternity Leave Act.
Actions to Take Now
Unlike most employment laws, the Domestic Workers' Bill of Rights primarily impacts individuals and families who are often unfamiliar with the thicket of federal and state employment laws. And the risks of noncompliance are substantial. Violations of this statute may be prosecuted by the Attorney General or allegedly aggrieved domestic workers, and prevailing employees are entitled to treble damages for any lost wages plus attorneys' fees. Accordingly, individuals and families employing domestic workers should review their current practices and consult with counsel as appropriate to ensure those practices are compliant with the significant requirements of this new law.
Day Pitney Alert
Day Pitney Alert
Day Pitney Alert
Heather Weine Brochin and Gregory Tabakman authored an article entitled "Third Circuit Advises that Employer Must Pay Employees for Short Rest Breaks," which was published by the New Jersey Law Journal.
Day Pitney partner Francine Esposito will speak at the upcoming webinar "Workplace Leave Laws: Strategies to Navigate the Changing Landscape in the U.S." Taking place on Sept. 14 at 2 p.m., the webinar is the first in a series of webinars hosted by the Employment Law Alliance (ELA) on workplace leave laws around the globe.
John McLafferty was quoted in an article, "Employment Lawyers Leery of Bill Banning NDAs, Arbitration," published by Massachusetts Lawyers Weekly.
Heather Weine Brochin was quoted in an article, "Confidentiality Disqualifies Harassment Settlement Tax Deductions," published on the Society for Human Resource Management (SHRM) website.
John McLafferty was quoted in an article, "How Employers' Haunted House and Fright Night Went Way Wrong," published on the Society for Human Resource Management (SHRM) website.
Michael Furey was quoted in an article, "The Biggest New Jersey Cases of 2016," which was published in Law360.
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.