The Law that Now Protects Domestic Workers in Massachusetts

Andra J. Hutchins Andra J. Hutchins

For those private homeowners who employ people to perform domestic or child care work in their homes, a new law has emerged regarding the rights of these workers. The new Domestic Worker’s law in Massachusetts – called the Domestic Workers Bill of Rights – took effect on April 1, 2015 (M.G.L. ch. 149, §190). Now, those who employ people to work in their homes must be mindful of the protections now granted to this category of workers. This law is intended to protect workers who provide care in the home, not, for instance, landscapers, or home repair persons.

This blog is meant to provide a brief overview of the law, as it is new territory for those to whom it applies (both homeowners and domestic workers). At its core, the law is meant to provide labor protections for those who previously had no such protections while working in someone’s home, including protections related to record keeping, hours worked, breaks, leave, rights of termination, and sexual harassment.

A domestic worker under the statute is “any individual or employee who is paid by [a household, family, or person] to perform work of a domestic nature within a household…”.  Domestic work includes housekeeping, cooking, house cleaning, home management, nanny services, caretaking, laundering, home companion services, or other household services performed for the family. Those individuals who are personal care attendants are not covered under this statute. Additionally, those who perform child care on a casual basis (such as a casual babysitter) are not covered under this statute. An employer under the statute is anyone who employs a domestic worker to work in a private home, but does not include placement agencies.

There is some uncertainty present in the language of the statute regarding child care. As stated above, individuals who provide child care on a casual, intermittent basis, for less than 16 hours per week, such as the occasional babysitter that a family uses, are not covered under this law. The law also states that an individual who provides childcare services but whose “vocation is not childcare” is also excluded from the law.  Arguably, this definition could include anyone whose vocation is not child care, such that a domestic worker who cooks and cleans for a childless family for 40 hours per week would not be covered. However, as this law is new and has not yet been interpreted by the judiciary, the interpretation is debatable. If you have questions regarding whether your domestic worker is covered under this statute, it is best to consult with an attorney.

At the heart of the law is a right to leave. An employer, under this statute, must provide 40 hours of earned job-protected sick time during a calendar year to a domestic worker who works 40 hours per week or more. If a domestic worker works more than 40 hours per week, the employer must also provide a rest period – where no work is performed – of at least 24 consecutive hours each week, and at least 48 consecutive hours each month.  Rest means complete freedom from all duties, whether the domestic worker leaves the home, or stays in the home during the period of rest. This rest period should accommodate religious worship, where possible. A domestic worker may agree to work on a day of rest, however, this agreement must be in writing, and compensation must be at the overtime rate for all hours worked on a day of rest. Also, all rest periods must be paid unless there is a written agreement signed by both parties for these periods to be unpaid.

Domestic workers must also be provided with job protected leave of 8 weeks for the birth or adoption of a child.

Because some domestic workers call their place of employment their residence as well, protections are afforded regarding termination.  If there is no cause for termination, an employer must give a domestic worker 30 days’ written notice of termination.  If the employer wants a domestic worker to immediately leave the home and does not want to provide the 30 days’ notice, the employer must still provide written notice of termination and must also put up the domestic worker in a comparable living situation for 30 days, or provide 2 weeks’ severance pay.  If there is cause for termination, an employer must provide the worker with a written explanation of the cause.

As with other employees, sexual harassment of a domestic worker is illegal. An employer, or anyone residing in the house, cannot sexually harass a domestic worker, or make unwelcome sexual advances towards a domestic worker.

If an employer employs a domestic worker for more than 16 hours per week, the employer must keep records, and provide written information to the worker, of the worker’s rate of pay; hours worked, including overtime hours; meal breaks and rest periods; paid time off, including sick time, vacation time, personal time, and holidays, if applicable; the responsibilities of the job; the grievance process; worker’s compensation benefits, if applicable; reasons for termination for cause; fees deducted for meals and lodging; the reasons the employer may enter the worker’s living quarters; the required notice of termination; and any additional benefits. These records must be kept for a period of three years. Additionally, for those domestic workers who work over 16 hours per week, the employer must provide a timesheet to the worker at least once every two weeks, for the worker to fill out.

As with any new law, there will be a period of adjustment for both covered employers and employees. If you employ someone you think may be a domestic worker, or if you think you may be a domestic worker, you should consider consulting with an attorney before making any decisions, so that you understand your rights and obligations.