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HOUSE  .   .   .   .   .   .   .  No. 3884

 

The Commonwealth of Massachusetts
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                               HOUSE OF REPRESENTATIVES, January 30, 2014.                         

 

The committee on Labor and Workforce Development to whom were referred the petition (accompanied by bill, Senate, No. 882) of Anthony W. Petruccelli, Katherine M. Clark, Sal N. DiDomenico, William N. Brownsberger and other members of the General Court for legislation to establish a domestic workers bill of rights and the petition (accompanied by bill, House, No. 1750) of Michael J. Moran and others for legislation to establish employment rights for certain domestic workers, reports recommending that the accompanying bill (House, No. 3884) ought to pass

 

For the committee,

 

                                                                                                  THOMAS P. CONROY.

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE DOCKET, NO.                 FILED ON: 1/30/2014

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3884

 


The Commonwealth of Massachusetts
 

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In the Year Two Thousand Fourteen

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An Act establishing the domestic workers' bill of rights.
 

              Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

              SECTION 1.  Section 105D of chapter 149 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after the word “fifty-one B”, in line 39, the following words:-

              “and section 189 of this chapter”.

              SECTION 2.  Section 150 of chapter 149, is hereby further amended by striking the words “or 159C, in line 21, and inserting in their place the following words:-

              “159C, or 189”.

              SECTION 3.  Chapter 149 is hereby further amended by inserting after section 188 the following sections:-

              Section 189 (a)  As used in this section and section 190, the following words, unless the context clearly requires otherwise, shall have the following meanings:-

              “Domestic worker”, any individual or employee who is paid by a household, family or any person to perform work of a domestic nature, including, but not limited to, housekeeping, house cleaning, home management, nanny services including childcare and child monitoring, caretaking of individuals in the home including sick, convalescing and elderly individuals, laundering, cooking, home companion services and other household services for members of households or their guests in  private homes; provided that the term “domestic worker” shall not include an individual whose vocation is not childcare and whose services for the employer primarily consist of childcare on a casual, intermittent and irregular basis for one or more family or household members, and shall not include a personal care attendant.             

              “Employer”, any person who suffers or permits a domestic worker to work.  An employer shall not include a staffing agency or placement agency licensed or registered under chapter 140 and shall not include an individual to whom a personal care attendant provides personal care attendant services.

              “Federal act”, the Family and Medical Leave Act of 1993, 29 U.S.C. sections 2601 to 2654, inclusive, as it may be amended.

              “Forced services”, services performed or provided by a domestic worker, as defined under section 49 of chapter 265, as it may be amended, that are obtained or maintained by another person.

              “Rest” or “period of rest”, a period of time with complete freedom from all duties and during which a domestic worker may either leave the employer’s premises or stay on the employer’s premises for purely personal pursuits.  Paid days of rest shall be considered as vacation time and pay under chapter 149.

              “Person”, one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy or receivers.

              “Personal care attendant”, an individual who provides personal care attendant services to persons with disabilities or seniors under the Masshealth personal care attendant program or any successor program under sections 70 to 75, inclusive, of chapter 118E, as it may be amended.

              “Working time”, compensable time that includes all time during which a domestic worker is required to be on the employer’s premises or to be on duty and any time worked before or beyond the end of the normal scheduled shift to complete work. Working time includes meal periods, rest periods and sleeping periods unless a domestic worker is free to leave the employer’s premises and use the time for the domestic worker’s sole use and benefit and is completely relieved of all work-related duties.

              (b)  An employer who employs a domestic worker for 40 hours a week or more shall provide a period of rest of at least 24 consecutive hours in each calendar week and at least 48 consecutive hours during each calendar month, and where possible, this time shall allow time for religious worship.  The domestic worker may voluntarily agree to work on a day of rest; provided that the agreement is in writing and the domestic worker is compensated at the overtime rate for all hours worked on that day.  Days or periods of rest whether paid or unpaid shall be job-protected leave from employment.

              (c)  When a domestic worker who does not reside on the employer’s premises is on duty for less than 24 consecutive hours, the employer shall pay the domestic worker for all hours as working time in compliance with 455 CMR 2.03 as amended. 

              (d)  When a domestic worker is required to be on duty for a period of 24 consecutive hours or more, the employer and the domestic worker may agree under terms that are in compliance with 455 CMR 2.03 as amended, to exclude a regularly scheduled sleeping period of not more than 8 hours from working time for each 24-hour period. 

              (e) When a domestic worker is required to be on duty for a period of 24 consecutive hours or more and if no prior written agreement is made, all meal periods, rest periods and sleeping periods shall constitute working time.

              (f)  A domestic worker shall pay for food or beverages only if it is voluntarily and freely chosen.  Payments shall not be unreasonable or exceed the actual cost to the employer for the food or beverages.  If a domestic worker cannot easily bring or prepare meals on premises, the employer shall not accept any payments for food or beverages.  No employer shall deduct from the wages of a domestic worker an amount for food and beverages that exceeds the amounts permitted under 455 CMR 2.04 as amended.

              (g)  A domestic worker shall pay for lodging only if it is voluntarily and freely accepted, desired and actually used by the domestic worker and meets the standards for adequate, decent and sanitary lodging under 455 CMR 2.04 as amended and 105 CMR 410.000 as amended.  Payments for lodging shall not be allowed if the employer requires that a domestic worker reside on the employer’s premises or a particular location.  No employer shall deduct an amount from the wages of a domestic worker for lodging that exceeds the amounts permitted under 455 CMR 2.04 as amended.

              (h)  No deductions for meals or lodging shall be made from a domestic worker’s wages without the domestic worker’s prior written consent.  No other deductions shall be made from a domestic worker’s wages other than for specifically named and identified purposes, goods, or services required or expressly allowed by law.

              (i)  A domestic worker shall have a right to privacy under section 1B of chapter 214.  An employer shall not restrict or interfere with a domestic worker’s means of private communication, monitor a domestic worker’s private communications, or take any of the domestic worker’s documents or other personal effects, or engage in any conduct which constitutes forced services or trafficking of a person in violation of sections 50 and 51 of chapter 265.

              (j)  A domestic worker who is involuntarily terminated shall have the right to a written explanation of the grounds for termination, and if the domestic worker disagrees with this explanation, the domestic worker shall have the right to submit an explanation and to enforcement of these rights under section 52C of chapter 149.  A domestic worker shall have the right to a written evaluation of work performance from his or her employer after three months of employment, and annually thereafter.  A domestic worker shall have the right to inspect and dispute the written evaluation under section 52C of chapter 149.  

              (k)  If a domestic worker resides in the employer’s household, and the employer terminates employment without cause, the employer shall provide written notice and at least 30 days of lodging, either on-site or in comparable off-site conditions, or severance pay in an amount equivalent to the average earnings during two weeks of employment.  Neither notice nor a severance payment shall be required in cases involving good faith allegations that are made with reasonable basis and belief and without reckless disregard or willful ignorance of the truth that abuse, neglect or any other harmful conduct has been committed by the domestic worker against the employer or members of the employer’s family or individuals residing in the employer’s home.  

              (l)  Any employer who employs a domestic worker shall keep a record of wages and hours under section 15 of chapter 151.  Any employer who employs a domestic worker for 16 hours or more a week shall provide, in addition to the information required under section 15 of chapter 151  the following:  the rate of pay including overtime and additional compensation for added duties or multilingual skills; working hours including meal breaks and other time off; and where applicable, the provisions for days of rest, earned sick days, vacation days, personal days, holidays, transportation, health insurance, severance, yearly raises, and whether or not earned, sick days, vacation days, personal days, holidays, severance, transportation costs and health insurance are paid or reimbursed; any fees or other costs including costs for meals and lodging; the responsibilities associated with the job; the process for raising and addressing grievances and additional compensation if new duties are added; the right to collect workers compensation if injured; the circumstances under which the employer will enter the domestic worker’s designated living space on the employer’s premises; the required notice of employment termination by either party; and any other rights or benefits afforded to the domestic worker.  Failure to comply with this paragraph shall constitute a violation of section 19(3) of chapter 151.

              (m)    An employer shall provide a domestic worker with a notice that contains all applicable state and federal laws that apply to the employment of domestic workers.  This requirement shall be satisfied if the employer provides a notice as described in paragraph (o).

              (n)  Nothing in this section shall be construed to affect any policies or practices of an employer which provides for greater, additional or more generous wages, benefits or working conditions to a domestic worker than those required under this section.

              (o)  The attorney general shall enforce this section, shall promulgate rules and regulations necessary for the enforcement of this section and may obtain injunctive or declaratory relief for this purpose, and shall post on its website a sample written record of information required under paragraph (l), a multilingual notice of employment rights under this section, and state and federal employment laws that apply to the employment of domestic workers required under paragraph (m). Violation of this section shall be subject to sections 27C (b)(1) and (2), (c) and 150.

              Section 190 (a)  It shall be an unlawful discriminatory practice for an employer to: (1) engage in unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature to a domestic worker when: (i) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (ii) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (iii) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile or offensive working environment; (2) subject a domestic worker to unwelcome harassment based on sex, sexual orientation, gender identity, race, religion, national origin or disability where such harassment has the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile or offensive working environment; or (3) refuse job-protected leave for the birth or adoption of a child by the domestic worker or his or her spouse under section 105D.

              (b) For the purposes of paragraph (a)(1), the term domestic worker shall include personal care attendants as defined in section 189(a).

              (c)  The provisions of this section shall be enforced by the Massachusetts commission against discrimination under chapter 151B.

              SECTION 4.  Section 19 of chapter 151 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out, in lines 4 and 5, the following words:-

              “for not less than sixteen hours per week”.

              SECTION 5.  Sections 189 through 190 may be cited as “The Domestic Workers’ Bill of Rights” and shall be liberally construed in aid of its purpose which is to establish industry specific protections and labor standards that protect domestic workers’ basic workplace rights.

              SECTION 6.  Section 4A of chapter 151A of the General Laws, is hereby amended by inserting after the word “unit”, in line 23, the words:-

              “or domestic service performed by one of more individuals.”

              SECTION 7.  Section 6 (b) of chapter 151A of the General Laws, is hereby repealed.

              SECTION 8.  Section 1 of chapter 151B of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after the word “include”, in line 18, the words:-

              “an employer of domestic workers including those covered under section 189 of chapter 149, and”.

              SECTION 9.  Section 1 of chapter 151B of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out, in line 32, the words:- 

              “or in the domestic service of any person.”

              SECTION 10.  Section 1 of chapter 153 of the General Laws, is hereby amended by striking out, in line 33, the words:-

              “domestic servants”.

              SECTION 11.  (a)  Within one year of the effective date of this act, the executive office of labor and workforce development, in consultation with the attorney general and the office of access and opportunity, shall develop and implement a multilingual outreach and training program to inform domestic workers and employers about their rights and responsibilities. This program shall include the distribution of know your rights information, model employment agreements, which shall include but not be limited to sample written provisions for all benefits required under this section, as well as vacation time, sick time, and severance pay, educational materials for employers on their human resources duties in employing domestic workers, including information on benefits, tax and insurance laws, a professional development training program for domestic workers on safe care-giving and housekeeping practices, including the use of nontoxic household cleaning products and protection from injuries, illness and disease, and a model written work evaluation form.  

              (b)  Within one year of the effective date of this act, the executive office of labor and workforce development shall report to the governor and to the senate president, the speaker of the house and the joint committee of labor and workforce development on: (1) developing a framework within the unique domestic work context for the collective bargaining rights of domestic workers under section 3A of chapter 150A; (2) developing a state supported mediation program to address disputes between domestic workers and their employers; (3) developing occupational safeguards and standards for domestic workers; and (4) providing a domestic worker health care and retirement fund.  This report shall be prepared in consultation with domestic workers and their representatives, and with the Massachusetts AFL-CIO, 1199SEIU United Health Care Workers East, SEIU 615, employers of domestic workers, the department of labor relations and other interested state and federal agencies.

              SECTION 12.  Sections 1 through 5 shall take effect on September 7, 2015.

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