On August 31, Governor Paterson signed the Domestic Workers Bill of Rights (DWBOR) into law, making New York the fi rst state to provide explicit workplace protections to domestic workers. The law takes effect on November 29, 2010. It provides greater rights and protections for New York’s 200,000 domestic workers and imposes substantial new responsibilities on those who employ them. All employers of domestic workers—regardless of the number of workers—are covered by DWBOR’s prohibition against discrimination and harassment and by the application of the state’s wage/hour and disability benefi t laws to domestic workers.
To whom does the new law apply?
In contrast to the New York State Human Rights Law (NYSHRL) and the New York City HRL (NYCHRL), which cover only entities having four or more employees, the new law applies to any individual, family, or household that employs a single domestic worker. DWBOR protects virtually all domestic workers, including housekeepers, those who care for the elderly, and those who provide companionship for the sick. Several categories of workers are excluded, however: those engaged in companionship services and employed by an entity other than the family or household, au pairs, minors who work on a “casual basis” (e.g., babysitters), and relatives by blood or marriage.
Prohibition on discrimination and harassment
For the fi rst time, domestic workers will be protected from sexual, racial, and certain other forms of discrimination. DWBOR provides that it is unlawful for an employer to discriminate against a domestic worker or to subject a domestic worker to harassment based on the worker’s race, gender, religion, or national origin. The law expressly prohibits sexual harassment, including unwelcome sexual advances and other conduct of a sexual nature. In addition, retaliation against a domestic worker for protesting perceived discrimination is prohibited.
Overtime pay and other protections provided by DWBOR
Among the other signifi cant protections provided by DWBOR is the right of domestic workers to receive overtime pay at a rate equal to at least one and one-half times their regular hourly wage for work in excess of forty hours per week. Also, the state’s minimum wage provisions will now also apply to domestic workers. This provision thus imports existing interpretations of the state wage/ hour laws into the domestic worker context (e.g., “on call” hours count as worked hours if there are restrictions on the employee’s mobility).
The law also amends New York’s Workers’ Compensation Law to include domestic workers in the category of employees eligible to receive statutory disability benefi ts from their employer, and will thus clearly require employers to carry workers’ compensation and DBL insurance. In addition, domestic workers must receive one full day of rest (consisting of twenty-four consecutive hours) every calendar week, although this privilege is subject to waiver by the employee.
For many people, the overtime pay aspects of DWBOR will not be applicable, as they employ domestic help, if at all, for less than forty hours per week.
For those who employ full-time help, as well as for those who employ domestic employees for shorter periods, compliance with most of the DWBOR will be a matter of common sense: don’t discriminate in hiring, terms and conditions of employment, and termination; make sure that all household members (and visitors and other workers) refrain from harassment of all domestic workers; have a clear understanding, preferably in writing, of the employee’s hourly rate, hours to be worked (including hours when the employee must be on the premises, even if not actually working), and time off; maintain accurate records of the time that the employee actually works or is not free to pursue his or her own activities; have accurate records of wages paid, moneys withheld, and the reasons for withholding; have accurate records of the payment of payroll taxes (which now will include deductions for the state disability benefi ts law); and document all disputes, disciplinary action, performance issues, and complaints.
More elaborate compliance strategies could include:
- Having a signed employment agreement that provides for employmentat- will while clearly setting out the wage rate, expected hours of work, voluntary fringe benefi ts (if any), and perhaps a dispute resolution mechanism, such as arbitration or pre-litigation mediation.
- Consulting insurance companies/ brokers to assure that workers’ compensation and other appropriate coverages are in place; consider an Employment Practices Liability policy.
- Having the employee sign and authenticate all time and payment records.
- Engaging a professional payroll service to assure that deductions are made properly and that payroll taxes are paid.
- Learning the basics about prohibited harassment and discrimination, and being prepared to treat complaints seriously and promptly, without retaliation. Moreover, mentioning the employer’s opposition to discrimination/ harassment/retaliation in the employment contract, if there is one, or in a hire letter, is a very good idea.