Exercising Care When Engaging Domestic Workers

Recently, several families who engaged domestic workers to assist loved ones contacted us for legal advice. They did so after receiving a notice from a law enforcement agency (e.g., NYS Department of Labor).

Few families understand that federal and NY laws require them to act like a small business when they engage domestic workers. NY law gives domestic workers special protection under wage & hour, anti-discrimination and workers’ compensation laws. This article will identify how family members can exercise care when engaging domestic workers.

WHEN IN DOUBT, TREAT THE DOMESTIC WORKER LIKE AN EMPLOYEE

A domestic worker is protected by NY law if he or she is employed in a home and serves “as a companion for a sick, convalescing or elderly person, housekeeping, or for any other domestic service purpose.” Domestic workers are NOT protected if they: (1) work on a casual basis; (2) provide companionship services (so long as they are employed by someone other than the family); or (3) are related to the employer or the loved one (so long as the loved one is being served under a program funded or administered by the government).

NY law does not define casual basis, however, most understand that it means services that are irregular, intermittent and NOT performed by someone who performs these services for a living. Federal law defines companionship services as “the provision of fellowship and protection for an elderly person or a person with an illness, injury, or disability who requires assistance in caring for himself or herself.” A more detailed explanation of companionship services is found at http://www.dol.gov/whd/regs/compliance/whdfs79a.pdf

ADVICE–Unless you engage a domestic worker through an employment or similar agency, treat them like an employee. Extend to them all rights afforded by NY and federal law. Helpful information is found at http://www.labor.ny.gov/legal/domestic-workers-bill-of-rights.shtm (NY law) and http://webapps.dol.gov/elaws/whd/flsa/scope/ee9.asp (US law).

DOMESTIC WORKERS MUST BE PAID WEEKLY, AT A RATE AT LEAST THE MINIMUM WAGE & FOR OVERTIME HOURS

NY law requires that domestic workers be paid weekly. You must pay employees “on the books,” including paying the employer’s share of FICA. As a general rule, domestic workers who do not live in the home of those they serve are non-exempt. This means that they must be paid at least the minimum wage and are entitled to overtime pay (at one and one-half times their regular hourly rate) for all hours worked over 40 hours within a seven day workweek.

Live-in domestic workers also must be paid at least the minimum wage for all hours worked. They also are entitled to overtime pay (at one and one-half times their regular hourly rate), however, it applies to hours worked over 44 hours within a seven day workweek.

ADVICE–Pay domestic workers timely and properly. Keep good records. They will help if a dispute arises with the domestic worker or you are audited by a governmental agency.

WATCH OUT FOR HARASSMENT/HOSTILE WORK ENVIRONMENT CLAIMS

Until 2010, NY employers who employed less than four people were not liable as a matter of law if they violated laws that prohibit unlawful discrimination (e.g., refuse to hire someone on account of their age). As a consequence, most domestic employers were free to discriminate unlawfully.

Since 2010, domestic employers (no matter how many people they employ) can be held liable under the NY Human Rights Law if they harass or otherwise create a hostile work environment motivated by gender/sex, race, religion or national origin. A domestic worker can enforce their rights by filing a charge of discrimination with the NYS Division of Human Rights [“DHR”]. They are not required to hire and pay a private lawyer to do so. For more information, see http://www.dhr.ny.gov/sites/default/files/pdf/domestic-workers.pdf

Effective October 9, 2018, domestic employers (no matter how many people they employ) must have a sexual harassment prevention policy and a related employee complaint form. They also must provide training annually about sexual harassment prevention. For more information about these requirements, see https://modicalawfirm.com/new-york-state-issues-final-guidance-on-new-sexual-harassment-laws/

ADVICE–Do not discriminate based on any protected class.

COMPLY WITH REST & NOTICE RULES, BUY PROPER INSURANCE

Domestic workers are entitled to 24 hours of rest every seven days (or overtime pay if the worker agrees to work on his or her day of rest). After one year of employment, the domestic worker is entitled to three paid days of rest annually.

Domestic workers who work 40 hours or more/week—or who live on the employer’s premises—must be covered by workers’ compensation, unemployment and short term disability insurance.

Household employers are required to post a notice of the rights of domestic workers in their homes and in a place where such notices can be seen by their workers.

For a very helpful summary of the rights of domestic workers, and the responsibilities of domestic employers, is found at http://www.labor.ny.gov/formsdocs/factsheets/pdfs/P712.pdf

ADVICE—Make sure you follow all the rules. Buy proper insurance.

If you need help navigating these rules, please contact us.