'Domestic Workers Bill of Rights' Marks a Major Shift, Attorney Says

--Bill passed by New York Senate could have national ripple effects if it becomes law

Jun 14, 2010, 09:30 ET from LeClairRyan

NEWARK, N.J., June 14 /PRNewswire/ -- Dealing with employees' sick leave, holidays, vacation days and termination notices might sound like the exclusive domain of trained experts in Human Resources, but such workplace concerns will become a legal responsibility for thousands of New York households should the state's so-called Domestic Workers Bill of Rights become law, said attorney Joseph P. Paranac, Jr., a Newark-based shareholder on LeClairRyan's Labor and Employment team.

"The state Senate passed its version of the bill on June 2nd by a 33-28 margin, and my sense is that this legislation has a good chance of passing in the House and eventually being signed into law," Paranac said. "If that happens, it will amount to a major change in New York's employment-law landscape, with consequences that could very well include the unionization of domestic workers across the state."

National ripple effects are a possibility as well, the attorney added, noting that the social-action website Change.org has already cited the state Senate's passage of this bill in an online petition titled "Tell California to Pass a Domestic Workers Bill of Rights!"

"If New York becomes the first state to give domestic workers explicit labor protections, this major legislation could well spark a national shift on this issue," Paranac said.

The proposed legislation defines a domestic worker as anyone employed in a home or residence to perform any domestic service, including housekeeping, caring for a child or serving as a companion to a person who is sick, convalescing or elderly. According to supporters of the bill, these workers have historically been excluded from many of the traditional protections afforded by the state's labor laws. Domestic workers also lack the right to organize labor unions for the purpose of collective bargaining. As a result, supporters claim, New Yorkers who hire them have been able to get away with paying them unfairly low wages, denying them vacation days or sick leave, and even subjecting them to verbal and physical abuse.

While domestic workers clearly are covered by many existing labor laws, there is some truth to these claims, Paranac said. "Generally, an 'employer' in New York is defined as an entity made up of four or more people," he explained. "So a single mother who hires a maid to clean her apartment does not meet that threshold. This is why supporters of the bill describe domestic workers as being part of a 'unique, home-based industry' that is marked by a certain lack of transparency, as well as what some might interpret as employment-law gray areas."

Today, for example, a substantial number of domestic workers are paid a salary, even though the services they perform clearly do not qualify as salary work. "The big question is if you divide those salaries by the number of hours worked, do the domestic workers actually make minimum wage?" Paranac said. "That could become a significant issue."

The Senate bill gives full-time domestic workers, defined as those who work at least 40 hours a week, seven paid sick days and five paid vacation days per year. Part-time domestic workers who work between 20 and 40 hours would be guaranteed four paid sick days and three paid vacation days annually. Paid holidays for all domestic workers would include New Year's Day, Martin Luther King Day, Independence Day, Labor Day, Thanksgiving, and Christmas.

"The bill spells out domestic workers' workday as being eight hours, and if you work more than 40 hours a week you are entitled to overtime," Paranac said. "The legislation also provides for one day of rest every calendar week. That could be voluntarily waived by the worker, but the pay for that day would be at the overtime rate."

The House bill contains one important difference from the Senate version: It gives domestic workers the right to unionize. "The Senate bill, by contrast, merely directs the Labor Commissioner to submit a report to the Legislature on the feasibility and practicality of domestic workers obtaining common employment benefits—health insurance, severance pay and collective bargaining power," Paranac explained. If the bill that emerges from the conference committee gives domestic workers the green light to organize, that could have far-reaching consequences, the attorney noted. "In New York, for example, the Service Employees International Union ("SEIU") represents a lot of maintenance workers and doormen in the various apartment buildings," he said. "Taken together, those two groups represent a sizable workforce. What is to stop the SEIU from trying to do the same with domestic workers? All of a sudden you've got a sizeable group of people demanding, say, medical benefits. The cost of hiring a full-time domestic worker could rise dramatically."

The legislation also gives domestic workers certain anti-discrimination protections. "That is important because if you terminate a domestic worker and that person claims you did so for discriminatory reasons, the case could end up before the state division on human rights," Paranac said. "There is also a section in these bills that says the attorney general can bring legal actions on behalf of domestic workers who feel they have not received their legally guaranteed wages and benefits."

Hirers of housekeepers, caregivers and nannies frequently fire such employees upon suspicion of theft or other inappropriate behavior. The legislation requires a 14-day termination notice that would likely prove controversial in actual practice, Paranac said. "If the employer fails to give adequate termination notice, the employee can receive back pay and the value or cost of any benefits that employee would have received," he explained. "That raises the specter of an employee stealing something in a way that is difficult to prove, being fired for it without receiving the 14-day notice, but then also being guaranteed back pay and benefits to boot. Employers will be none too pleased."

All told, the legislation could add significant new legal responsibilities and costs to those who hire domestic workers. Many such employers, Paranac noted, will be unaware of their new responsibilities until it is too late. "No doubt some will only become aware of the new law only after running afoul of it and becoming the subject of a complaint," Paranac said. "Those who are aware of this legislation, should it indeed become law, will need to embrace their entry into the field of Human Resources, so to speak, and do everything in their power to fully comply with their new responsibilities."

About LeClairRyan

Founded in 1988, LeClairRyan provides business counsel and client representation in corporate law and high-stakes litigation.  With offices in California, Connecticut, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Virginia and Washington, D.C., the firm has approximately 300 attorneys representing a wide variety of clients throughout the nation.  For more information about LeClairRyan, visit www.leclairryan.com.

Available Topic Expert(s): For information on the listed expert(s), click appropriate link.

Joseph P. Paranac, Jr.


SOURCE LeClairRyan