Domestic Workers United
This handbook is full of vital information to help domestic workers protect themselves and put their rights to work. Laws that are not enforced have only symbolic value. The first step toward exercising your rights is to know your rights!
This fact sheet is a useful reference for questions regarding protection under the law for domestic workers as well as complaint filing procedures. Issues discussed include working under an agency, protection for non-U.S. citizens, unemployment and health insurance, human rights law, income tax, harassment and public health programs.
Protect Yourself Against Sexual Harassment by New York Division of Human Rights
NEW YORK STATE DIVISION OF HUMAN RIGHTS
Protection of DOMESTIC WORKERS from harassment under the NYS Human Rights Law and OTHER PROTECTIONS FOR DOMESTIC WORKERS:
Overtime Pay. Domestic workers are entitled to overtime pay for hours worked in excess of 40 hours per week (or 44 hours per week for live-in workers). Overtime pay is least one and one-half times your normal wage rate. N.Y. Labor Law § 170.
Day of Rest. Domestic workers are entitled to at least 24 consecutive hours of rest in each calendar week. You may voluntarily agree to work on your day of rest if compensated at the overtime rate for all hours you work on the day of rest. The day of rest should, whenever possible, coincide with your traditional day for religious worship. N.Y. Labor Law § 161.1.
Paid Vacation. After one year of performing domestic work with the same employer, you are entitled to at least three days of rest in each calendar year at the regular rate of compensation. N.Y. Labor Law § 161.1.
How To File A Complaint
If you believe that you have been sexually harassed in your employment, or harassed on the basis of your gender, race, religion or national origin, or retaliated against for complaining of such harassment, you can file a complaint with the New York State Division of Human Rights.
A complaint must be filed with the Division of Human Rights within one year of the alleged discriminatory act. Domestic workers are protected with regard to harassment occurring on or after November 29, 2010.
If you don’t file with the Division of Human Rights, you may file a complaint directly in court within three years of the harassment.
The Employment Rights of Domestic Workers
The New York State Human Rights Law was amended, effective November 29, 2010, to provide protection from workplace harassment for domestic workers. Unlawful harassment includes sexual harassment, as well as harassment on the basis of gender, race, religion, or national origin. Domestic workers are also protected from retaliation by their employers for complaining of such harassment.
You are a domestic worker if you are employed in a home or residence for the purpose of caring for a child, serving as a companion for a sick, convalescing or elderly person, housekeeping, or for any other domestic service purpose. N.Y. Labor Law § 2.16; Human Rights Law § 296-b.
For other types of employment, the Human Rights Law applies only to employers with four or more employees. However, the protections for domestic workers apply regardless of the number of person employed. Even if you are the only worker employed by the household, you are protected.
Domestic workers often labor under harsh conditions, work long hours for low wages with few benefits and little job security, are isolated in their workplaces, and can be endangered by sexual harassment and assault, as well as verbal, emotional and psychological abuse on the basis of gender, race, religion or national origin. The legislature has concluded that because domestic workers care for the most important elements of their employers' lives, their families and homes, it is in the interest of employees, employers, and the people of the State of New York to ensure that the rights of domestic workers are respected, protected, and enforced. Laws of 2010 chapter 481, effective November 29, 2010.
WHAT IS SEXUAL HARASSMENT?
Sexual harassment can consist of unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature. Sexual harassment occurs when any of the following is true:
- Submission to such conduct is made either explicitly or implicitly a term or condition of your employment, such that you believe you would be fired if you object, or you would have to quit in order to escape from the conduct;
- Submission to or rejection of such conduct by you is used as the basis for employment decisions, such as the setting of your hours or pay rate; or
- Such conduct has the purpose or effect of unreasonably interfering with your work performance by creating an intimidating, hostile, or offensive working environment. Examples of sexually harassing conduct include:
- Pressure to engage in unwelcome sexual activities;
- Unnecessary or inappropriate physical contact;
- Sexual assault;
- Verbal harassment or abuse in the form of a pattern of sexual comments or questions; or
- Displays of lewd photographs or drawings.
WHAT OTHER HARASSMENT IS PROHIBITED?
Harassment consists of actions which have the purpose or effect of unreasonably interfering with your work performance by creating an intimidating, hostile, or offensive working environment. Harassment of domestic workers is in violation of the Human Rights Law when it is:
- Directed at you because of your gender, race, religion or national origin; or
- Consists of offensive or humiliating comments or jokes about people of your gender, race, religion or national origin.
WILL I SUFFER RETALIATION IF I COMPLAIN?
New York’s Human Rights Law prohibits retaliation for objecting to unlawful harassment in your workplace, or for filing a complaint with the Division. If you feel you are a victim of retaliation, you should contact the Division and file a complaint.
EXCLUSIONS FROM COVERAGE
You are not covered by the Human Rights Law as a domestic worker if you:
- Work on only a casual basis. Examples would be occasional babysitting or other household services that are for a limited amount of time, are performed without regularity, or are performed only during intermittent periods.
- Work for a person related to you by blood, marriage or adoption.
Wage Theft Law
A law passed in 2010 gives more protection to workers in New York State. This law, the Wage Theft Prevention Act (WTPA), took effect on April 9, 2011. Here are some key provisions of the new law that employers need to know.
What is New?
Public Notice of violations
If an employer breaks certain parts of the labor, the Labor Department (DOL) may post the violation in a place where employees can see it for up to a year.
For a willful failure to pay all wages under this law, DOL may post a summary of violations in a place where the public can see it, for up to 90 days. It is a misdemeanor to remove or tamper with this notice without permission.
What are changes to existing Law?
Enhanced rules against retaliation
The WTPA extends the protections under Labor Law 215. It also gives DOL more power to enforce this law.
- It was always illegal to discharge, penalize and/or discriminate against an employee who makes a complaint. Threats are now included as a form of retaliation.
- In the past, we could only cite employers for retaliation. Now, it is illegal for any person to retaliate.
- In the past, penalties for breaking this rule meant we could fine an employer up to $10,000. Now, DoL can order the employer or the person who acted against the employee to pay liquidated damages. The payment can be up to $10,000.
- DOL may order the employer to reinstate the worker’s job. Or the employer may have to pay the person for lost salary or pay a lump sum in lieu of reinstatement.
- Retaliation carries criminal penalties for employee complaints about any section of the Labor Law.
- The protection applies to any worker who alleges that the employer has done something that the employee thinks breaks a Labor Law or an Order issued by the Commissioner. This applies even if the employee is mistaken about the law, if they acted in good faith. it applies even if the employee does not cite a specific part of the Labor Law.
- This law protects employees even if the employer incorrectly believes they made a complaint.
- The Law already required employers to give notice to employees of their wage rates at the time of hire. Now, the WTpa requires employers to give a written notice to each new hire and to all employees by february 1 each year. The notice must include:
- Rate or rates of pay, including overtime rate of pay (if it applies)
- How the employee is paid: by the hour, shift, day, week, commission, etc.
- Regular payday
- Official name of the employer and any other names used for business (DBa)
- Address and phone number of the employer’s main office or principal location
- Allowances taken as part of the minimum wage (tip, meal and lodging deductions)
- In the past, the notices were in English. Now, the notice must appear both in english and in the employee’s primary language (if the Labor Department offers a translation).
- Employers must have each employee sign and date the completed notice. Employers must provide a copy to each employee.
- If any data in the notice changes, the employer must tell employees at least a week before it happens unless they issue a new paystub that carries the notice. The employer must notify an employee in writing before they reduce the employee’s wage rate. Employers in the hospitality industry must give notice every time a wage rate changes.
- Employers that do not give notice may have to pay damages of up to $50 per week, per employee, unless they paid employees all wages required by law. (This stops at $2,500 per employee in civil lawsuits filed by workers.)
Under prior law, some of the recordkeeping requirements were in the statute, while others were in the regulations. Now, the requirements are part of the law, which makes it easier for employers to understand their obligations. however, industry-specific regulations will still have some additional requirements. Employers must:
- Keep records for six years. Records include the new notice and acknowledgment and payroll records.
- Keep accurate records of hours worked by employees and wages paid. Now, the law clarifies the employers must keep the records on an ongoing basis. The employer may not make up the records after the fact at the end of the week, month or year.
- For each week an employee works, the payroll records must contain:
- Hours worked - (regular and overtime)
- Rate or rates of pay ( regular/overtime)
- How the employee is paid: by the hour, shift, day, week, commission, etc.
- Pay at the piece rate must show what rates apply and the number of pieces at each rate
- Employee’s gross and net wages
- Itemized deductions
- Itemized allowances and credits claimed by the employer, if any (tip, meal and lodging allowances or credits
Under the new law, employers must:
- Give each employee a wage statement or pay stub each payday that lists all of the above payroll data plus:
- Employee’s name
- Employer’s name, address and phone number
- Dates covered by the payment
- Give any employee who asks a written explanation of how they computed wages
Employers that do not give wage statements may have to pay damages of up to $100 per week, per employee, unless they paid employees all wages required by law. (This stops at $2,500 per employee in civil lawsuits filed by employees.)
Damages and other penalties
The WTPA provides for higher penalties when an employer fails to pay the wages required by law.
- Under prior law, liquidated damages only covered up to 25% of the unpaid wages. Now, the law provides for liquidated damages on up to 100% of the unpaid wages. Once DoL issues an order to comply, it includes 100% liquidated damages, as well as other civil penalties and interest.
- If the violation is for other than wages, benefits or wage supplements, DOL may assess civil penalties for each violation. This means up to $1,000 for a first violation, $2,000 for a second, and $3,000 for third and subsequent violations.
- If the Labor Commissioner has issued an Order to Comply against an employer who does not pay the money owed, then 10 days after the appeal period ends, DOL can require them to post a bond and/or provide a list of their assets. If employers fail to do so, the Commissioner may bring a court case against them. For failure to provide the list of assets, DoL may impose a penalty of up to $10,000.
- The WTpa permits DoL to add 15% in damages to a judgment if the employer fails to pay in full within 90 days of the final order to comply.
This set of frequently asked questions addresses common scenarios revolving around the implementation of the bill. Topics addressed include paid time off and information for casual workers.
Frequently Asked Questions
- I am an undocumented worker. Does the new law apply to me?
Yes, the Bill of Rights protects all workers, regardless of immigration status. In New York State, labor laws are separate from immigration laws. So once you are employed, you are entitled to the protection of the Bill of Rights and most other workplace laws (except for unemployment insurance) and have the right to file claims in court or with the Department of Labor if your rights are violated.
- I am a part-time worker. How does the new law protect me?
If you are employed less than 40 hours per week, you are still protected under the Bill of Rights. As a part-time worker, you are:
- Protected against sexual harassment by your employer
- Protected from harassment based on race, gender, national origin, or religion
- You have the right to temporary disability benefits (pending legislative revision)
On Days of Rest:
- If you worked, on average, fewer than 20 hours per week for an employer over the last year, no matter how many days a week you worked, you are entitled to one day of paid rest from that employer for the calendar year under this law, as long as you are not employed on a casual basis.
- If you worked an average of 20 but fewer than 30 hours per week for an employer over the last year, no matter how many days a week you worked, you are entitled to two days of paid rest from that employer for the calendar year under this law.
- If you worked 30 or more hours per week for an employer, no matter how many days a week you worked, you are entitled to three days of paid rest for the calendar year from that employer under this law.
- What if I work longer than 10 hours per day?
For both part-time and full-time workers, if you are paid the minimum wage of $7.25 and work more than 10 hours in one day, you are entitled for an extra hour’s pay at the minimum wage.
- Right now my employer gives me two weeks’ paid vacation, and two days off per week, but the Bill of Rights says workers are entitled to only 3 paid days off per year, and one day of rest per week. Will I lose my vacation days and weekends because of the bill?
The Bill of Rights sets a minimum standard, a floor below which no employer can go. Other industries have had these minimum standards for decades. They are there to protect workers from extreme exploitation. However, employers are encouraged to go above and beyond the minimum— and if your current agreement is above the standards of the bill, your agreement with your employer should not be affected by the bill. Please refer to the DWU Standard Contract.
- Does the Bill of Rights specify what wages I should be getting paid?
No. Your wages are negotiated between you and your employer. Domestic workers are entitled to the minimum wage, but DWU recommends that you negotiate at least a living wage, one that meets your needs. Your overtime pay (work after 40 hours for live-out workers, and 44 hours for live-in) should be calculated as 1 ½ times your usual wage, NOT 1 ½ times the minimum wage. So if you earn $15/hour, you should be paid $22.50/hour for overtime work.
- Can my employer fire me for standing up for my new rights?
No. If you complain to your employer or the Labor Department about a violation of these laws, your employer cannot retaliate against you.
- Once the Bill of Rights goes into effect, what can I do if my employer is not following the new law?
If you feel that your rights are being violated, contact DWU. DWU and the Urban Justice Center have set up a Domestic Workers Legal Clinic, where you can get free legal assistance. We are also working with the New York State Department of Labor, which will take cases of violations of the new law, and has agreed to expedite those cases for at least the first year that the Bill of Rights is in effect.
- What are temporary disability benefits, and how do I apply for them? How are they different from workers’ compensation benefits?
Temporary disability benefits are temporary cash benefits provided to a worker for disability caused by off-the-job injury or illness. There is a minimum of days already worked for an employer before a worker becomes eligible. These weekly payments are intended to partially substitute for wages while a worker is unable to work, for up to 26 weeks in a 52-week period. The employer is responsible for providing these benefits to the employee, and can purchase insurance to provide these benefits. The employer may deduct a maximum of $0.60/week from an employee’s wages to assist in paying for this insurance. You can apply by filling out the DB-450 form, available at http://www.wcb.state.ny.us/content/main/Workers/Workers.jsp or at a branch of the Workers’ Compensation Board of New York State.
Workers’ compensation benefits (wage-replacement and medical care) for on-the-job injury or illness are available to domestic workers employed for at least 40 hours per week for a single employer. The C-3 claim form and other information are available here: http://www.wcb.state.ny.us/content/main/Workers/Workers.jsp.
- I had heard that the Bill of Rights would protect me from being fired without notice or severance pay from my job. Does the bill protect me from being fired without notice?
No. Unfortunately, the provisions for notice of termination and severance pay were taken out of the bill at the last minute. It is a protection that DWU and our allies and partners are still fighting for. To learn more about what we are doing to continue the struggle for greater rights and protections, and to join us in the fight, contact us or come to a general membership meeting. General membership meetings are held on the third Saturday of every month.
The Domestic Workers Legal Clinic offers free legal support to domestic workers whose rights have been violated. In 2010, Domestic Workers United started the Domestic Workers Legal Clinic in partnership with the Urban Justice Center.
If you have been unjustly treated, exploited, abused, injured or taken advantage of in the workplace, call (212) 481-5747 to make an appointment with an in-take specialist.
You must be a member of DWU in order to gain access to free legal assistance, referrals, and support for filing claims with the Department of Labor.
"We have a dream that one day all work will be valued equally."
Domestic Workers United is an organization of nannies, housekeepers, and elderly caregivers in New York City organizing for power, respect, fair labor standards, and to help build a movement for social change.
Attend a meeting. Share your story and build community with other domestic workers.
Become a member. Access free workshops and legal services.
Build the movement. Join hands with other domestic workers and supporters to bring recognition and respect to our industry.
To learn more about DWU or to attend an orientation and membership meeting, please call (212) 481-5747 or email firstname.lastname@example.org.