Domestic Workers Given Special Protection Under New Law
by Avrohom Gefen, Esq.
Everyone who employs a domestic worker should be aware that on November 29, 2010 the New York Domestic Workers' Bill of Rights became effective. Among other things, the law, which is apparently the first of its type in the U.S., provides that housekeepers, nannies, companions to the ill or elderly or any person "employed in a home for domestic purposes" must receive overtime pay if they work more than 40 hours in a week (44 hours for "live-in" workers). The overtime pay is calculated at 1.5 times a worker's regular hourly rate of pay, which must be at least the minimum wage of $7.25 an hour. Part-time babysitters and live-in companions, who were previously exempt from the New York Minimum Wage Act, must now be paid minimum wage. There remains an exception for part-time babysitters hired on a "casual" basis.
Additional important provisions of the law require employers to:
- procure disability and worker's compensation insurance for domestic workers working 40 or more hours per week;
- provide domestic workers at least 1 day off each 7 day work week (to coincide, where possible, with the day the worker traditionally reserves for religious worship); and
- provide domestic workers with three paid days off after one year of employment.
The law also removes the domestic worker exemption from the Human Rights Law and creates a special cause of action for domestic workers who are subjected to sexual, racial or other types of harassment. More specifically, domestic workers were previously excluded from the Human Rights Law and most employers with less than four employees cannot be sued for violations of the Human Rights Law. Under the Domestic Workers' Bill of Rights, however, a domestic worker can now sue an employer for violations of the Human Rights Law regardless of the number of employees. On a practical level, these provisions allow a domestic worker to sue his or her employer for sexual, racial and other types of harassment, even if that worker is the sole employee.
Employers of domestic workers should take steps to protect themselves from potential claims by domestic employees and to ensure they comply with other potentially applicable provisions of New York law. One important step is maintaining records showing the domestic worker's hours worked, rate and frequency of pay, gross pay, deductions and net pay. Since New York law permits claims for unpaid overtime and other wages to be brought up to 6 years after they were earned, these records should be kept for at least that long. While the effects of this legislation remain to be seen, the implications are enormous. Contact an Employment Litigation attorney at VMM for further clarification of this new law.
Avrohom Gefen, Esq. is an Associate in Vishnick McGovern Milizio's Litigation Department. He practices in the areas of commercial litigation and employment law. Avrohom can be reached at 516-437-4385, ext. 119 or via e-mail at Agefen@vmmlegal.com.