Governor Paterson has recently signed into law the Domestic Workers' Bill of Rights as well as an amendment to the New York Civil Rights Law pertaining to bereavement leave. These two new pieces of legislation provide additional protections to employees throughout the State of New York.
Domestic Workers' Bill of Rights
On Aug. 31, 2010, Governor Paterson signed legislation that makes New York the first state in the country to grant domestic workers basic employment rights. Effective Nov. 29, 2010, the Domestic Workers' Bill of Rights ("Bill of Rights") establishes basic employment rights to domestic workers by amending, among other laws, the New York State Labor Law.
The new legislation applies to all employers, including those who only employ one domestic worker. For purposes of the Bill of Rights, a domestic worker is broadly defined as a person employed in a home for the purpose of caring for a child, serving as a companion for a sick or elderly person, housekeeping or for any other domestic service purpose. The legislation does not include any individual:
- Working on a casual basis;
- Who is engaged in providing companionship services and employed by an employer or agency other than the family or household using his or her services; or
- Who is a relative through blood, marriage or adoption of the employer.
The Bill of Rights extends New York State Labor Law to domestic workers, entitling them to certain rights as related to their employment. The new legislation establishes an eight-hour legal day's work for domestic workers, to which the state minimum wage rate (currently $7.25/hour) applies. The law provides for mandatory overtime at the rate of 1 1/2 of the regular rate of pay after 40 hours per week for live-out domestic workers and after 44 hours per week for live-in domestic workers. The new legislation also provides one day of rest in each calendar week, as well as three paid days off per year after one year of service with the same employer. If the domestic worker voluntarily agrees to work on the day of rest, the worker is entitled to overtime pay.
Additionally, the Bill of Rights extends some of the provisions of the New York State Human Rights Law to domestic workers. Domestic workers will be protected from sexual, racial and certain other forms of discrimination. The amendment reads that it is an unlawful discriminatory practice for an employer to:
- Engage in unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to a domestic worker when: submission to such conduct is made a term or condition of employment, submission to or rejection of such conduct is used as the basis for employment decisions or such conduct has the purpose or effect of unreasonably interfering with an individual's work performance;
- Subject a domestic worker to unwelcome harassment based on gender, race, religion or national origin, where such harassment has the purpose or effect of unreasonably interfering with an individual's work performance; or
- Discriminate against a domestic worker based on the worker's race, gender, religion or national origin.
The new legislation also amends the short-term disability provisions of the Workers' Compensation Law to protect domestic workers who work less than 40 hours each week. This extension of coverage will require employers to maintain workers' compensation and disability insurance to provide the requisite coverage for their domestic workers.
The Bill of Rights creates some complications for employers of domestic workers. The following precautionary measures will help employers avoid potential liability.
- Employers and domestic workers should have a discussion, preferably culminating in a written employment agreement, of the employee's hourly rate, hours to be worked, time off and any other terms of employment.
- Employers of domestic workers should take steps to maintain accurate records of the time that the employee actually works, wages paid and the payment of payroll taxes. Employers should consider having the employee sign and authenticate all time and payment records.
- Employers should contact their insurance companies to ensure that they maintain the necessary workers' compensation and disability insurance coverage for their domestic workers.
- Employers should take steps to familiarize themselves with applicable harassment and discrimination laws.
- Employers should treat all complaints of harassment and discrimination seriously and should document all complaints, as well as any disputes, disciplinary action or performance issues.
Funeral Leave Benefit Extended to Same-Sex Committed Partners
Effective Oct. 29, 2010, the New York Civil Rights Law provides that employers who extend funeral or bereavement leave to an employee for the death of a spouse, child, parent or other relative shall not deny the same leave for the death of an employee's same-sex committed partner. The law defines same-sex committed partners as those who are financially and emotionally interdependent in a manner commonly presumed of spouses. While the law does not require written notice of the law's requirements be provided to employees, we recommend that employers change their existing funeral or bereavement policies to apply to same-sex committed partners and distribute the updated policies to employees.