How to Hire a Domestic Worker and Stay Out of TroublePosted: August 15, 2018
The Massachusetts Domestic Workers’ Bill of Rights (“DWBR”), G.L. c. 149, §§ 190–191, enacted in 2015, provided expansive new protections to domestic workers and imposed new obligations on their employers. Violation of the DWBR can result in substantial penalties, including mandatory treble damages, attorneys’ fees and costs. Employers who fail to comply with the DWBR can face enforcement actions by the Attorney General (“AG”), the aggrieved worker, or the Massachusetts Commission Against Discrimination (“MCAD”). Yet, many remain unfamiliar with the DWBR and its implementing regulations. 940 CMR 32.00. This article reviews key provisions of the DWBR.
Who Is Covered?
The DWBR protects workers employed within a household, regardless of their immigration status, who perform domestic services, including housekeeping, house cleaning, nanny or home companion services, and in-home caretaking of sick or elderly individuals for “wage, remuneration or other compensation.” G.L. c. 149, § 190(a); 940 CMR 32.02. The DWBR does not alter who is deemed an independent contractor (rather than domestic employee) under G.L. c. 149, § 148B.
The DWBR does not cover: (i) babysitters who work less than sixteen hours per week providing “casual, intermittent and “irregular” childcare, and whose primary job is not childcare; (ii) personal care attendants (“PCAs”) who provide services under the MassHealth PCA program; and (iii) employees of a licensed or registered staffing, employment or placement agency. G.L. c. 149, § 190(a); 940 CMR 32.02.
The DBWR requires employers to provide domestic workers with “notice of all applicable state and federal laws.” G.L. c. 149, § 190(m); 940 CMR 32.04(6). “Notice of Rights” and “Record of Information for Domestic Workers” forms can be found on the AG’s website. Additionally, before work commences, employers must provide domestic workers who work sixteen or more hours a week a written employment agreement in a language the worker understands. The agreement should contain the terms and conditions of employment and specify any deductible fees or costs and worker’s rights to grievance, privacy, and notice of termination. G.L. c. 149, § 190(l); 940 CMR 32.04(3).
Both employer and worker must sign the agreement, which must be kept on file for at least three years. A “Model Domestic Worker Employment Agreement” can be found on the AG’s website.
Working Hours, Rest Periods
Domestic workers must be paid for all time they are required to be on the employer’s premises, on duty, or any time worked before or beyond normally scheduled shifts to complete the work. G.L. c. 149, § 190(a); 940 CMR 32.02.
Workers on duty for less than twenty-four consecutive hours who do not reside on the employer’s premises must be paid for all working time, including meal, rest or sleep periods, unless the worker is free to leave the premises and completely relieved of all work-related duties during that period. G.L. c. 149, § 190(a) and (c).
For workers on duty for twenty-four hours or more, all meal, rest and sleep periods constitute working time. However, the worker and employer can agree to exclude from working time a regularly scheduled sleeping period of not more than eight hours if there is advance written agreement in a language understood by the worker, signed by both the worker and employer. G.L. c. 149, § 190(d) and (e); 940 CMR 32.03(2).
Workers working forty or more hours per week must have at least twenty-four consecutive hours off each week and at least forty-eight hours off each month. A worker may volunteer to work on a day of rest but only if there is a written agreement made in advance, signed or acknowledged by both the worker and employer. The worker must be paid time and a half for all hours worked in excess of forty hours. G.L. c. 149, § 190(b); 940 CMR 32.03(3).
Under certain circumstances, an employer may deduct food, beverages and lodging costs from a worker’s wages. G.L. c. 149, § 190(f) and (g); 940 CMR 32.03(5)(b) and (c). Such deductions are subject to the statutory maximums found in 454 CMR 27.05(3) pursuant to G.L. c. 151.
Food and beverage costs can be deducted only if they are voluntarily and freely chosen by the worker. If the worker cannot easily bring, prepare or consume meals on the premises, the employer cannot make such deductions. G.L. c. 149, § 190(f); 940 CMR 32.03(5)(b).
Lodging costs can be deducted only if the worker voluntarily and freely accepts and actually uses the lodging. An employer cannot deduct lodging costs if the employer requires the worker live in the employer’s home or in a particular location. G.L. c. 149, § 190(g); 940 CMR 32.03(5)(c).
There must be a written agreement specifying the deductions, made in advance, in a language understood by the worker, signed or acknowledged by both the worker and employer. 940 CMR 32.03(5)(a).
Record Keeping, Times Sheets, Written Evaluations
Employers must keep records of domestic workers’ wages and hours for three years. G.L. c. 149, § 190(l); 940 CMR 32.04(2). Employers must provide workers who work more than sixteen hours per week with a time sheet at least once every two weeks. 940 CMR 32.04(4). Both the worker and employer must sign or acknowledge the time sheet. Signing or acknowledging a time sheet does not preclude a worker from claiming that additional wages are owed. Id. Likewise, a worker’s refusal to sign or acknowledge a time sheet does not relieve the employer from paying wages owed. Id. A sample time sheet can be found on the AG’s website.
After three months, a worker may request a written performance evaluation and, thereafter, annually. G.L. c. 149, § 190(j). The worker can inspect and dispute the evaluation under G.L. c. 149, § 52C, the Massachusetts Personnel Records law. Id.
Right to Privacy
The DWBR prohibits employers from restricting, interfering with or monitoring a worker’s private communications and from taking a worker’s documents or other personal effects. G.L. c. 149, § 190(i); 940 CMR 32.03(6). Additionally, employers are barred from monitoring a worker’s use of bathrooms and sleeping and dressing quarters. Id.
A worker who resides in the employer’s home must be given access to telephone and internet services, including text messaging, social media and e-mail, without the employer’s interference. 940 CMR 32.03(8).
Prohibition Against Trafficking, Harassment and Retaliation
It is a violation of the DWBR (and a crime) for employers to engage in any conduct that constitutes forced services or trafficking of a person for sexual servitude or forced services under G.L. c. 265, §§ 49-51. G.L. c. 149, § 190(i); 940 CMR 32.03(7).
The DWBR protects both domestic workers, as well as PCAs, from discrimination and harassment based on sex, sexual orientation, gender identity, race, color, age, religion, national origin or disability and from retaliation for exercising their rights. G.L. c. 191; 940 CMR 35.05(2).
Domestic workers are entitled to job-protected leave for the birth or adoption of a child under the Massachusetts Parental Leave Act, G.L. c. 149, § 105D. Id.
Employers who terminate live-in workers “for cause” must provide the worker with advance written notice and at least 48 hours to leave. G.L. c. 149, § 190(k); 940 CMR 32.03(9)(c).
Employers who terminate live-in workers “without cause” must provide the worker with written notice and at least thirty days of lodging or two weeks severance pay. G.L. c. 149, § 190(k); 940 CMR 32.03(9)(a).
Neither notice nor severance is required where good faith allegations are made in writing that the worker abused, neglected or caused any other harmful conduct against the employer or members of the employer’s family or individuals residing in the employer’s home. G.L. c. 149, § 190(k); 940 CMR 32.03(9)(b).
No termination notice or severance is required for workers who do not reside in the employer’s home.
Violations of the DWBR are enforced by the AG or by the aggrieved worker pursuant to the Massachusetts Wage Act, G.L. c. 149, § 150. Workers who prevail in court are awarded treble damages, the costs of litigation and attorneys’ fees. Violations of the DWBR’s anti-discrimination and anti-harassment provisions are enforced by the MCAD.
Andrea Peraner-Sweet is a partner at Fitch Law Partners LLP. Her practice focuses on general business litigation with an emphasis on employment litigation as well as probate litigation.