Attorney General’s Office Finalizes Regulations on Domestic Workers Bill of Rights

A few months ago, the so-called Domestic Workers Bill of Rights became law in Massachusetts. The law has not garnered a tremendous amount of attention from employment lawyers, presumably because it only covers “household employers,” who employ domestic workers such as nannies or housecleaners. As a management-side employment attorney and the employer of a wonderful nanny, I have been following this law and the development of associated regulations.  Two days ago, the Office of the Attorney General finalized those regulations.

The general premise of the law is a good one – that domestic workers should enjoy the same rights as other employees in the Commonwealth. However, the law, and in particular the regulations, impose greater obligations on household employers than other employees in the Commonwealth. This is problematic because household employers lack the time and resources to comply with the myriad of administrative requirements imposed by the law. For example, the law requires that the employer and the household employee have a written employment contract and specifically mandates that the agreement include a host of provisions that are not found in most offer letters or contracts. The agreement must describe a process for raising grievances or requesting more money if duties are added. Further, the law states that a domestic employee may demand a written performance evaluation after three months and annually thereafter. If the domestic worker lives in the employer’s home, the employer must give 30 days’ notice before termination without cause or at least two weeks of severance pay.

One of the requirements that really irks me is not in the statute itself but is introduced in the regulations – a specific process for recording an employee’s hours of work. Most employers have discretion in setting up a timekeeping system. That is not the case for household employers. They must maintain timesheets, the employee must have the opportunity to sign or acknowledge agreement with the time worked each week or every other week, and the employer must provide a copy of the signed document to the employee. The kicker is that the process is meaningless; the employee’s signature does not mean that he or she agrees with the amount of time worked. The employee can still sue for unpaid wages, regardless of his or her signature on the timesheet.

The other troubling aspect of the law is that it ignores what is really going on. When my wife and I were looking to hire a nanny, many of the candidates were very clear that they had no interest in paying taxes and wanted to be paid under the table. This was a non-starter for us, but it highlights a real problem. If the Office of the Attorney General is truly focused on regulating the underground economy, it should target domestic workers who are not interested in satisfying their legal obligations in addition to non-complaint household employers.

The Domestic Workers Bill of Rights does not impact most employers. It does, however, signify a developing trend where Massachusetts passes an employment law scheme that targets a particular industry. A few years ago, the state passed a law focused on the staffing industry. My concern is that these types of industry-specific laws will become more common, particularly in areas targeted by labor unions, leading to less consistency in how the Commonwealth regulates employers overall.

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