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New Protections for Massachusetts Domestic Workers, Part 1

Earlier this spring, the Massachusetts Domestic Workers Bill of Rights Act took effect, providing expansive new protections and rights to individuals who provide household services, including childcare, housekeeping, housecleaning, cooking, and eldercare.

In the past, domestic workers have had informal and flexible arrangements with their household employers with respect to job description and duties, hours and rate of pay, rest and vacation time, and the grievance and termination process.  This has created a potential for abuse particularly in cases involving domestic workers who are vulnerable due to immigration status or who lack the ability to advocate for themselves due to limited English skills.  Until the passage of the new law, domestic workers have had only limited recourse in state and federal wage and hour laws, tort, and contract law to remedy wage violations or poor working conditions.

Now, domestic workers are protected by statute and a proposed regulatory scheme (expected to take effect following a notice-and-comment period), enforced by the Massachusetts Attorney General’s Office, to ensure that they are paid what they are entitled to and have good working conditions.  Massachusetts families who employ domestic workers need to understand that they must now comply with specific rules intended to protect their employee or employees and a number of notice and record-keeping obligations in furtherance of these protections.

What is a Domestic Worker?

Domestic workers are defined as “[a]n individual, including an independent contractor . . . , who received compensation from an employer to provide any service of a domestic nature within a household.”  940 C.M.R. 32.02 (emphasis added).  Work of a domestic nature within a household, includes but is not limited to: “(i) housekeeping; (ii) house cleaning; (iii) home management; (iv) nanny services; (v) caretaking of individuals in the home, including sick, convalescing and elderly individuals; (vi) laundering; (vii) cooking; (viii) home companion services; and (ix) other household services for members of households or their guests in private homes.”  M.G.L. ch. 149 s. 190(a).

This definition is quite broad, but appears to exclude truly part-time (16 hours or less per week) or casual babysitters.  The exclusions are individuals who provide care to the disabled or elderly under the MassHealth personal care attendant program, individuals who provide childcare services but whose vocation is not childcare (i.e., parents or grandparents), and individuals who provide “childcare on a casual, intermittent and irregular basis” (i.e., a casual weekend, evening, or school vacation babysitter).   940 C.M.R. 32.02.  With respect to the “casual and intermittent” babysitter, the proposed regulations specify that employment under 16 hours per week on average meets this definition.  Id.  Thus, a part-time regular babysitter who works approximately 16 hours or under a week would not be covered under this law.  The proposed regulations further specify that employment over 16 hours may also be excluded if the extra hours “are without regularity or are for irregular or intermittent periods, such as school vacation periods.”  Id. (emphasis added).  This language would therefore appear to exclude nannies who are hired solely for the summer or other school vacation periods.

What are the New Protections for Domestic Workers?

The new protections for domestic workers include provisions for rest time, overtime, privacy, and notice or severance pay for termination of live-in employees.

Rest Periods

The law makes clear that full-time domestic workers (employed for 40 hours or more per week) are no longer permitted to work seven days per week unless the worker voluntarily agrees to do so.  Full-time domestic workers are required to have at least one 24-hour rest period during the week and at least one 48-hour rest period during each calendar month.  Domestic workers can waive this requirement but such a waiver must be made in advance, in writing or electronic communication, in a language easily understood by the worker, and signed or acknowledged by both the worker and employer.

Rest periods are considered “job-protected leave,” which means that a worker cannot be penalized for taking such leave with an adverse action, such as a dock in pay, reduced hours, or termination. If the rest period is a paid benefit, then it must be treated as vacation pay.  This means that it must be treated like wages and paid out upon the worker’s departure or termination from the position.

Overtime

The law also clarifies that domestic workers are entitled to be paid at an overtime rate of time and a half for all hours worked over 40 hours per week.  Importantly, when a domestic worker is required to be on duty for a period of 24 hours or more, which is a situation that arises for live-in nannies or nannies who provide overnight care or travel with families for vacation, all meal, rest, and sleep periods are considered working time.  Again, the worker can voluntarily agree to other terms, but such an agreement must be made in advance, in writing or in electronic communication, in a language easily understood by the worker, and signed or acknowledged by both parties.

Deductions

The law also provides that an employer may make deductions from the worker’s pay for the cost of food and beverages provided, but only if the worker voluntarily and freely chooses such items and nothing prevents the worker from easily bringing and preparing her own meals.  With respect to lodging, an employer may also deduct the cost from a worker’s wages, but only if the lodging complies with state sanitary requirements and the employer does not require the worker to reside in the lodging as part of her duties.  Any deductions for food, beverage, or lodging must be made with the worker’s agreement.  Again, it must be made in writing or electronic communication, in advance, in a language easily understood by the worker, and signed or acknowledged by both parties.  The law emphasizes that deductions may only be taken for specifically identified and lawful purposes.  The proposed regulations expand on this principle by very broadly stating that an employer may not withhold wages or take deductions from a worker’s compensation simply due to dissatisfaction with the worker’s performance.  M.G.L. ch. 149 s. 190(h); 940 C.M.R. 32.03(12).

Privacy

Workers’ privacy is also protected under the new law and proposed regulations.  Specifically, employers are barred from monitoring a worker’s use of the bathroom and sleeping and dressing quarters.  While this should be obvious to most employers, with the ubiquity of nanny cameras, this is an important protection for childcare workers, particularly live-in nannies or housekeepers who reside with the families they work for.  Likewise, the law also restricts employers from restricting or interfering with workers’ use of private communication through phone, text, or email.  The proposed regulations, however, recognize that there is limit to such a restriction and allows for an exception if the “worker’s private communication significantly interferes with his or her performance of expected duties.”  940 C.M.R. 32.03(14).

With respect to live-in workers, the proposed regulations also require that the employer allow the worker to have a reasonable opportunity to access telephone and internet services, including text, social media, and email without the employer’s interference and, if the employer has such services, to provide it without charge to the worker.  If the employer does not have such services, the proposed regulation requires that the employer provide the worker reasonable opportunity to access such services at the worker’s expense.  940 C.M.R. 32.03(16).

Notice of Termination

The law and proposed regulations also require written notice and either 30 days of lodging or two weeks’ severance pay for termination “without cause” of a domestic worker who resides in the employer’s household or a location required by the employer.  There does not appear to be a notice or severance requirement for workers who are not live-in.

“Cause” is not specifically defined by the statute or regulations.  However, the proposed regulations specifically state that no advance notice or severance is needed if the employer makes a good faith allegation, in writing before or at time of termination, that the worker abused, neglected or caused any harmful conduct to the employer or members of the household.  The allegations must be made with a “reasonable basis and belief and without reckless disregard or willful ignorance of the truth.”  940 C.M.R. 32.03(19).  If termination is for cause relating to other conduct, the employer is required to provide “advanced written notice, if practicable” and a reasonable opportunity to find other lodging within 24 hours.  940 C.M.R. 32.03(20).

The proposed regulations make clear that termination for cause is not limited to harmful conduct.  940 C.M.R. 32.03(20).  However, other than harmful conduct, it is unclear what constitutes cause under the statute.  In most employment contexts, cause is a fairly high standard and does not necessarily cover sporadic performance issues.  Given that cause is not specifically defined in this context, employers should take care to spell out expectations in advance for their household employees, preferably in writing and with agreement by the employee, and document performance issues in writing.  Without advance notice and documentation of a pattern and practice of performance issues, an employer may not be able to substantiate a cause termination.

It should also be noted that this rule appears to apply regardless of how long the worker has been employed.  Thus, even if the live-in worker has been employed for just a week, the employer is obligated to provide 30 days of lodging or two weeks of severance payment.

Part 2

Note: This is Part 1 in our series of blog posts detailing protections under the Massachusetts Domestic Workers Law.  Click here for further reading.

Click here to read about Zalkind Duncan & Bernstein’s employment law practice.

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