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Massachusetts Enacts Broad Protections For Domestic Workers

[September 24, 2014]  On July 2, 2014, Massachusetts Governor Deval Patrick signed into law the Massachusetts Domestic Workers’ Bill of Rights (“DWBR”), which extends various workplace protections to domestic workers.  With this law, which becomes effective April 1, 2015, Massachusetts joins three other states – New York, California, and Hawaii – that have enacted similar legislation.

The DWBR creates numerous substantive protections for domestic workers, including limiting the hours they can be required to work, mandating that domestic workers receive regular performance reviews upon request, and giving live-in domestic workers a right to advance notice of termination or severance pay.  Thus, individuals who employ domestic workers in Massachusetts should carefully review the DWBR and begin taking appropriate steps to ensure compliance with the statute.

Which Domestic Workers Are Covered?

The DWBR defines a “domestic worker” as an individual “paid by an employer to perform work of a domestic nature within a household,” including (but not limited to) house cleaning, home management, nanny services, caring for sick or elderly individuals, laundering, cooking, and home companion services.  However, the statute excludes personal care attendants and babysitters “whose vocation is not childcare,” as well as individuals who perform domestic work “on a casual, intermittent and irregular basis.”

Which Employers Are Covered? 

For purposes of the DWBR, an “employer” includes anyone who “employs a domestic worker to work within a household whether or not the person has an ownership interest in the household.”  Importantly, the statute excludes senior citizens and disabled individuals to whom personal care attendants provide services.  Staffing agencies are also excluded, as are placement agencies licensed under M.G.L. ch. 140 (which pertains to innkeeping).

Protections Established By The DWBR

Under the DWBR, domestic workers who work at least 40 weeks during a calendar year must be given rest periods of (i) at least 24 consecutive hours each calendar week, and (ii) at least 48 consecutive hours each calendar month.  However, a domestic worker may agree to waive these limitations, so long as the agreement is in writing and the worker is paid overtime for the waived rest time.

The statute also allows domestic workers to request written performance evaluations after three months of employment and annually thereafter.  (This is a fairly novel provision:  while formal performance evaluations are generally recommended as a best practice, they are rarely required by law.)  In addition, the DWBR places domestic workers within the coverage of the Massachusetts anti-discrimination statute, M.G.L. c. 151B, and the Massachusetts Maternity Leave Act, which permits employees to take job-protected leave for the birth or adoption of a child.

Other provisions of the DWBR prohibit employers from interfering with or monitoring domestic workers’ personal phone calls, and require that domestic workers be provided with a written notice listing all state and federal laws applicable to their employment.

Special Provisions For Live-In Domestic Workers

The DWBR also addresses meal, rest, and sleeping periods for domestic workers who reside in their employers’ households.  Under the statute, if a live-in domestic worker is required to be on duty for a period of 24 consecutive hours or more, all meal, rest and sleeping periods constitute paid working time, unless the parties have previously entered into a written agreement providing otherwise.

Additionally, the DWBR includes provisions addressing deductions made from live-in domestic workers’ wages.  For instance, the statute provides that an employer may make appropriate deductions from a domestic worker’s wages for lodging provided to the worker, but only if (i) the domestic worker freely and voluntarily accepts, desires, and actually uses the lodging; (ii) the worker is informed, in advance, of the specific deductions to be made and consents in writing to those deductions; and (iii) the lodging qualifies as adequate, decent, and sanitary under Massachusetts law.  Significantly, an employer may not deduct for lodging if a domestic worker is required to reside on the employer’s premises or in a particular location.  Thus, for instance, an employer who requires a nanny to live in his or her home may not deduct lodging expenses from the nanny’s wages.

Finally, the DWBR establishes termination notice requirements for domestic workers who reside in their employers’ households.  If a live-in domestic worker is terminated without cause, the employer must provide either (i) written notice and at least 30 days of continued lodging, either on-site or in a comparable off-site setting, or (ii) two weeks’ severance pay.  (The statute does not define “cause.”)  However, neither notice nor severance pay is required if an employer has a reasonable, good-faith belief that a domestic worker “has abused, neglected or caused any other harmful conduct against the employer, members of the employer’s family or individuals residing in the employer’s home.”  The employer must notify the domestic worker in writing of any such allegations.

Required Information Disclosures

Under the statute, a domestic worker who works at least 16 hours per week is entitled to be notified, in writing, of the following information:

      • Rate of pay;
      • Scheduled working hours, including meal breaks and other time off;
      • Any provisions relating to holidays, rest days, sick days, vacation days, personal days, transportation costs, health insurance, severance, and annual raises;
      • Any fees or other costs to be deducted from the worker’s wages, including costs for meals and lodging (which must be consistent with applicable law);
      • The responsibilities associated with the job;
      • The process for raising and addressing grievances, and any additional compensation to be provided if new duties are added;
      • The right to collect workers’ compensation benefits if injured on the job;
      • If applicable, the circumstances under which the employer may enter the domestic worker’s designated living space on the employer’s premises;
      • The required notice of employment termination; and
      • Any other rights or benefits to be afforded to the domestic worker.

Recommendations For Employers Of Domestic Workers

The DWBR imposes a myriad of new requirements on what had formerly been a largely unregulated industry in Massachusetts.  Thus, before the statute goes into effect on April 1, 2015, we recommend that employers of domestic workers:

      • Confer with employment counsel to ensure that they will be in compliance with the requirements of the DWBR;
      • Begin preparing the written disclosures that will need to be provided to domestic workers; and
      • Closely monitor further developments in this area of the law.

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Please contact us if you have any questions regarding the DWBR or similar laws in other jurisdictions.  We regularly counsel employers on such matters, and we would welcome the opportunity to assist you.