senate Bill S2311E

Enacts provisions relating to labor standards for domestic workers

download pdf

Sponsor

Co-Sponsors

view all co-sponsors

Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
view actions

actions

  • 17 / Feb / 2009
    • REFERRED TO LABOR
  • 09 / Mar / 2009
    • REPORTED AND COMMITTED TO CODES
  • 02 / Jun / 2009
    • REPORTED AND COMMITTED TO FINANCE
  • 30 / Jun / 2009
    • AMEND (T) AND RECOMMIT TO FINANCE
  • 30 / Jun / 2009
    • PRINT NUMBER 2311A
  • 06 / Jan / 2010
    • REFERRED TO LABOR
  • 01 / Feb / 2010
    • REPORTED AND COMMITTED TO CODES
  • 08 / Feb / 2010
    • AMEND AND RECOMMIT TO CODES
  • 08 / Feb / 2010
    • PRINT NUMBER 2311B
  • 23 / Feb / 2010
    • REPORTED AND COMMITTED TO FINANCE
  • 02 / Mar / 2010
    • 1ST REPORT CAL.196
  • 03 / Mar / 2010
    • 2ND REPORT CAL.
  • 04 / Mar / 2010
    • ADVANCED TO THIRD READING
  • 10 / May / 2010
    • AMENDED ON THIRD READING 2311C
  • 24 / May / 2010
    • AMENDED ON THIRD READING 2311D
  • 01 / Jun / 2010
    • PASSED SENATE
  • 01 / Jun / 2010
    • DELIVERED TO ASSEMBLY
  • 02 / Jun / 2010
    • REFERRED TO LABOR
  • 29 / Jun / 2010
    • RECALLED FROM ASSEMBLY
  • 29 / Jun / 2010
    • RETURNED TO SENATE
  • 29 / Jun / 2010
    • VOTE RECONSIDERED - RESTORED TO THIRD READING
  • 29 / Jun / 2010
    • AMENDED ON THIRD READING 2311E
  • 01 / Jul / 2010
    • SUBSTITUTED BY A1470B

Summary

Relates to provisions regarding domestic workers and such workers' employment regulations concerning hours of labor and wages, employment restrictions and employment contracts.

do you support this bill?

Bill Details

See Assembly Version of this Bill:
A1470B
Versions:
S2311
S2311A
S2311B
S2311C
S2311D
S2311E
Legislative Cycle:
2009-2010
Law Section:
Labor Law
Laws Affected:
Amd §§2, 160, 161 & 651, add §170, Lab L; add §296-b, amd §292, Exec L; amd §201, Work Comp L
Versions Introduced in 2007-2008 Legislative Cycle:
A628B, A628B

Sponsor Memo

BILL NUMBER:S2311E REVISED 08/31/10

TITLE OF BILL:

An act to amend the labor law, the executive law and the workers'
compensation law, in relation to establishing regulations regarding
employment of domestic workers including hours of labor, wages and
employment contracts

PURPOSE OR GENERAL IDEA OF BILL:

This bill would provide domestic workers with a Domestic Workers' Bill
of Rights and would set out the basic responsibilities of employers and
employees.

SUMMARY OF SPECIFIC PROVISIONS:

1) one day of rest every calendar week, waivable by the worker with pay
for that day at the overtime rate of 1.5. The day of rest will, whenever
possible, coincide with the traditional day of religious worship;

2) overtime pay after 40 hours of work per week (44 hours for live-in
domestic workers);

3) after 1 year of work with the same employer, 3 days of rest per year
at the regular rate of compensation;

4) it will be an unlawful discriminatory practice for an employer to:

(a) 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 a term or condition of the work-
er's employment;
(ii) submission to or rejection of such conduct by a worker is used as
the basis for employment decisions; or
(iii) such conduct has the purpose or effect of unreasonably interfering
with an worker's job performance by creating an intimidating, hostile or
offensive working environment; or
subject a domestic worker to harassment based on gender, race, (b) reli-
gion or national origin, where such harassment has the effect of unrea-
sonably interfering with work performance by creating a hostile working
environment;

5) disability insurance to part time domestic workers;

6) Department of Labor given wage and hour enforcement powers for domes-
tic workers; and

7) Department of Labor is to complete by November 2010 a report on the
feasibility and practicality of collective bargaining for the domestic
worker workforce.

JUSTIFICATION:

Domestic workers are among the most oppressed workers in the United
States. They are often abused and mistreated and frequently work under
harsh conditions. They are regularly forced by employers to work seven
days a week and they receive little or no pay for their services. They
are also often physically, emotionally and sexually assaulted and
abused.

Many domestic workers come to the United States legally to escape pover-
ty in their country. The main reason for their employment is to earn
money to send to their families and support their children. Many domes-
tic workers are isolated, exploited and psychologically abused by their
employers, thus often creating in them the belief they will suffer seri-
ous harm if they leave their jobs. In addition, many domestic workers
fall through the cracks of U.S. government. Therefore the burden of
securing employer compliance becomes that of the domestic worker. Even
if a worker leaves their employer, he or she is not guaranteed time to
remain in the United States to seek legal redress.

The problems of domestic workers underline the need for legislation to
protect the rights of male and female employees working in homes.

PRIOR LEGISLATIVE HISTORY:
2009; Similar legislation was reported from Senate Labor and Codes
Committees but died in Finance; similar legislation passed the Assembly
2008: Similar legislation (A.628B) died in Assembly Labor Committee
2007: Similar legislation (A. 628B) died in Assembly Labor Committee
2006: Similar legislation (S.3547/A.2804) died in Senate Labor Committee
and Assembly Codes Committee
2005: Similar legislation (S.3547/S.2804) died in Senate Labor Committee
and Assembly Codes Committee
2004: Similar legislation (A.10948A) died in Assembly Labor Committee

FISCAL IMPLICATIONS:
Minimal.

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2311--E
    Cal. No. 196

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 17, 2009
                               ___________

Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE,
  ESPADA, FOLEY, HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, OPPENHEIMER,
  PADAVAN,  PARKER,  PERALTA,  PERKINS,  SAMPSON, SCHNEIDERMAN, SERRANO,
  SQUADRON, STACHOWSKI,  STAVISKY,  STEWART-COUSINS,  THOMPSON  --  read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Labor --  reported  favorably  from  said  committee  and
  committed  to  the  Committee on Codes -- reported favorably from said
  committee and committed to  the  Committee  on  Finance  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said committee -- recommitted to the Committee on Labor in accord-
  ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
  committee  and  committed  to  the  Committee  on  Codes  -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee  --  reported  favorably  from  said  committee  and
  committed  to the Committee on Finance -- reported favorably from said
  committee, ordered to first and second  report,  ordered  to  a  third
  reading,  amended  and  ordered  reprinted, retaining its place in the
  order of third reading -- again amended and ordered reprinted, retain-
  ing its place in the order of third reading -- passed  by  Senate  and
  delivered  to  the  Assembly, recalled, vote reconsidered, restored to
  third reading, amended and ordered reprinted, retaining its  place  in
  the order of third reading

AN  ACT  to  amend  the  labor  law,  the executive law and the workers'
  compensation law, in relation to  establishing  regulations  regarding
  employment  of  domestic  workers  including hours of labor, wages and
  employment contracts

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings and intent. Many thousands of domestic
workers  are  employed  in  New York state as housekeepers, nannies, and
companions to the elderly. The labor of domestic workers is  central  to

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00150-19-0

S. 2311--E                          2

the ongoing prosperity that the state enjoys, and yet, despite the value
of  their  work,  domestic workers do not receive the same protection of
many state laws as do workers  in  other  industries.  Domestic  workers
often  labor under harsh conditions, work long hours for low wages with-
out benefits or job security, are isolated in their workplaces, and  are
endangered  by  sexual  harassment  and  assault,  as  well  as  verbal,
emotional and psychological abuse. Moreover, many  domestic  workers  in
the  state  of  New York are women of color who, because of race and sex
discrimination, are particularly vulnerable to unfair  labor  practices.
Additionally,  domestic  workers  are  not  afforded by law the right to
organize labor unions for the purpose of collective bargaining.
  The legislature finds 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.
  S 2. Section 2 of the labor law is amended by adding a new subdivision
16 to read as follows:
  16. "DOMESTIC WORKER" SHALL MEAN A PERSON EMPLOYED IN A HOME OR  RESI-
DENCE  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. "DOMESTIC WORKER" DOES NOT INCLUDE ANY INDI-
VIDUAL (A) WORKING ON A CASUAL BASIS, (B) WHO IS  ENGAGED  IN  PROVIDING
COMPANIONSHIP  SERVICES,  AS DEFINED IN PARAGRAPH FIFTEEN OF SUBDIVISION
(A) OF SECTION 213 OF THE FAIR LABOR STANDARDS ACT OF 1938, AND  WHO  IS
EMPLOYED  BY  AN  EMPLOYER  OR AGENCY OTHER THAN THE FAMILY OR HOUSEHOLD
USING HIS OR HER SERVICES, OR (C)  WHO  IS  A  RELATIVE  THROUGH  BLOOD,
MARRIAGE  OR  ADOPTION OF:  (1) THE EMPLOYER; OR (2) THE PERSON FOR WHOM
THE WORKER IS DELIVERING SERVICES UNDER A PROGRAM FUNDED OR ADMINISTERED
BY FEDERAL, STATE OR LOCAL GOVERNMENT.
  S 3. The executive law is amended by adding a  new  section  296-b  to
read as follows:
  S  296-B. UNLAWFUL DISCRIMINATORY PRACTICES RELATING TO DOMESTIC WORK-
ERS. 1. FOR THE PURPOSES OF THIS SECTION:  "DOMESTIC WORKERS" SHALL HAVE
THE MEANING SET FORTH IN SECTION TWO OF THE LABOR LAW.
  2. IT SHALL BE AN UNLAWFUL DISCRIMINATORY PRACTICE FOR AN EMPLOYER TO:
  (A) 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.
  (B) SUBJECT A DOMESTIC WORKER TO UNWELCOME HARASSMENT BASED ON GENDER,
RACE, RELIGION OR NATIONAL ORIGIN, WHERE SUCH HARASSMENT HAS THE PURPOSE
OR EFFECT OF UNREASONABLY INTERFERING WITH AN INDIVIDUAL'S WORK PERFORM-
ANCE BY CREATING AN INTIMIDATING, HOSTILE, OR OFFENSIVE WORKING ENVIRON-
MENT.
  S  4. Subdivisions 5 and 6 of section 292 of the executive law, subdi-
vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6
as amended by chapter 166 of the laws of 2000, are amended  to  read  as
follows:

S. 2311--E                          3

  5.  The  term "employer" does not include any employer with fewer than
four persons in his OR HER employ EXCEPT AS SET  FORTH  IN  SECTION  TWO
HUNDRED NINETY-SIX-B OF THIS TITLE.
  6. The term "employee" in this article does not include any individual
employed  by  his  or  her  parents, spouse or child, or in the domestic
service of any person EXCEPT AS SET FORTH IN SECTION TWO  HUNDRED  NINE-
TY-SIX-B OF THIS TITLE.
  S  5. Subdivision 3 of section 160 of the labor law is amended to read
as follows:
  3. For all other employees, except those engaged in farm [or  domestic
service]  WORK  and  those  affected  by subdivision four of section two
hundred [and] twenty OF THIS CHAPTER, eight hours.
  S 6. The labor law is amended by adding a new section 170 to  read  as
follows:
  S  170.  HOURS OF LABOR FOR DOMESTIC WORKERS. NO PERSON OR CORPORATION
EMPLOYING A DOMESTIC WORKER AS DEFINED IN SUBDIVISION SIXTEEN OF SECTION
TWO OF THIS CHAPTER, SHALL REQUIRE ANY DOMESTIC WORKER TO WORK MORE THAN
FORTY HOURS IN A WEEK, OR FORTY-FOUR HOURS IN A WEEK FOR DOMESTIC  WORK-
ERS  WHO  RESIDE  IN  THE  HOME  OF  THEIR EMPLOYER; UNLESS THEY RECEIVE
COMPENSATION FOR OVERTIME WORK AT A RATE WHICH IS AT LEAST ONE AND  ONE-
HALF TIMES THE WORKER'S NORMAL WAGE RATE.
  S  7.  Subdivision  1  of  section  161 of the labor law is amended by
adding a new undesignated paragraph to read as follows:
  EVERY PERSON EMPLOYED AS A DOMESTIC WORKER AS DEFINED  IN  SUBDIVISION
SIXTEEN  OF SECTION TWO OF THIS CHAPTER, SHALL BE ALLOWED AT LEAST TWEN-
TY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK.    NO
PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A DOMESTIC WORKER FROM VOLUN-
TARILY  AGREEING TO WORK ON SUCH DAY OF REST REQUIRED BY THIS PARAGRAPH,
PROVIDED THAT THE WORKER IS COMPENSATED AT THE  OVERTIME  RATE  FOR  ALL
HOURS  WORKED ON SUCH DAY OF REST. THE DAY OF REST AUTHORIZED UNDER THIS
SUBDIVISION SHOULD, WHENEVER POSSIBLE, COINCIDE WITH THE TRADITIONAL DAY
RESERVED BY THE DOMESTIC WORKER FOR RELIGIOUS  WORSHIP.    IN  ADDITION,
AFTER ONE YEAR OF WORK WITH THE SAME EMPLOYER A DOMESTIC WORKER SHALL BE
ENTITLED  TO  AT  LEAST  THREE DAYS OF REST IN EACH CALENDAR YEAR AT THE
REGULAR RATE OF COMPENSATION.
  S 8. Subdivision 5 of section 651 of the  labor  law,  as  amended  by
chapter 640 of the laws of 2005, is amended to read as follows:
  5. "Employee" includes any individual employed or permitted to work by
an  employer in any occupation, but shall not include any individual who
is employed or permitted to work: (a) ON A CASUAL BASIS in service as  a
part time baby sitter in the home of the employer[; or someone who lives
in  the home of an employer for the purpose of serving as a companion to
a sick, convalescing or elderly person, and whose  principal  duties  do
not  include  housekeeping];  (b) in labor on a farm; (c) in a bona fide
executive, administrative, or professional capacity; (d) as  an  outside
salesman;  (e)  as  a  driver  engaged  in operating a taxicab; (f) as a
volunteer, learner or apprentice by a corporation, unincorporated  asso-
ciation,  community  chest,  fund  or  foundation organized and operated
exclusively for religious, charitable or educational purposes,  no  part
of the net earnings of which inures to the benefit of any private share-
holder or individual; (g) as a member of a religious order, or as a duly
ordained,  commissioned  or  licensed minister, priest or rabbi, or as a
sexton, or as a christian science reader; (h) in or for such a religious
or charitable institution, which work is incidental to or in return  for
charitable  aid conferred upon such individual and not under any express
contract of hire; (i) in or for such a religious, educational or  chari-

S. 2311--E                          4

table  institution if such individual is a student; (j) in or for such a
religious, educational or charitable institution if the earning capacity
of such individual is impaired by age or by physical or mental deficien-
cy  or injury; (k) in or for a summer camp or conference of such a reli-
gious, educational or charitable institution for  not  more  than  three
months  annually;  (l) as a staff counselor in a children's camp; (m) in
or for a college or university fraternity, sorority, student association
or faculty association, no part of the net earnings of which  inures  to
the  benefit  of  any  private  shareholder  or individual, and which is
recognized by such college  or  university,  if  such  individual  is  a
student;  (n)  by  a federal, state or municipal government or political
subdivision thereof. The exclusions from the term  "employee"  contained
in  this  subdivision  shall be as defined by regulations of the commis-
sioner; or (o) as a volunteer at a recreational or amusement  event  run
by  a  business  that operates such events, provided that no single such
event lasts longer than eight consecutive days and no more than one such
event concerning substantially the same subject  matter  occurs  in  any
calendar  year.  Any  such volunteer shall be at least eighteen years of
age. A business seeking coverage under this paragraph shall notify every
volunteer in writing, in language acceptable to the  commissioner,  that
by  volunteering  his  or her services, such volunteer is waiving his or
her right to receive the minimum wage pursuant  to  this  article.  Such
notice shall be signed and dated by a representative of the business and
the volunteer and kept on file by the business for thirty-six months.
  "Employee"  also includes any individual employed or permitted to work
in any non-teaching capacity by a school district or  board  of  cooper-
ative  educational  services  except that the provisions of sections six
hundred fifty-three through six hundred fifty-nine of this article shall
not be applicable in any such case.
  S 9. The opening paragraph of subdivision 5 and the opening  paragraph
of  paragraph  A of subdivision 6 of section 201 of the workers' compen-
sation law, the opening paragraph of subdivision 5 as amended by chapter
205 of the laws of 1993 and the opening  paragraph  of  paragraph  A  of
subdivision 6 as amended by chapter 903 of the laws of 1986, are amended
to read as follows:
  "Employee" means a person engaged in the service of an employer in any
employment  defined  in  subdivision six of this section, except a minor
child of the employer, [except  a  domestic  or  personal  worker  in  a
private  home  who is employed for less than forty hours per week by any
one employer, and] except a duly  ordained,  commissioned,  or  licensed
minister,  priest  or  rabbi,  a  sexton, a christian science reader, or
member of a religious order, or an executive officer  of  a  corporation
who  at  all times during the period involved owns all of the issued and
outstanding stock of the corporation and holds all of the offices pursu-
ant to paragraph (e) of section seven hundred fifteen  of  the  business
corporation  law  or  two executive officers of a corporation who at all
times during the period involved between them own all of the issued  and
outstanding  stock  of  such  corporation  and  hold  all  such  offices
provided, however, that each officer must own  at  least  one  share  of
stock, except as provided in section two hundred twelve of this article,
or  an  executive  officer  of  an incorporated religious, charitable or
educational institution, or persons engaged in a professional or  teach-
ing  capacity  in or for a religious, charitable or educational institu-
tion, or volunteers in or for a  religious,  charitable  or  educational
institution,  or  persons  participating in and receiving rehabilitative
services in a sheltered workshop operated by a religious, charitable  or

S. 2311--E                          5

educational  institution under a certificate issued by the United States
department of labor, or recipients of charitable aid from a religious or
charitable institution who perform work in or for the institution  which
is  incidental  to  or in return for the aid conferred, and not under an
express contract of hire. The terms  "religious,  charitable  or  educa-
tional  institution"  mean  a  corporation,  unincorporated association,
community chest, fund or foundation organized and  operated  exclusively
for  religious,  charitable  or educational purposes, no part of the net
earnings of which inure to the benefit of  any  private  shareholder  or
individual.
  "Employment"  means  employment  in  any trade, business or occupation
carried on by an employer, except that the following shall not be deemed
employment under this article:  services  performed  for  the  state,  a
municipal corporation, local governmental agency, other political subdi-
vision  or  public authority; employment subject to the federal railroad
unemployment insurance act; service performed on or  as  an  officer  or
member  of  the  crew  of  a vessel on the navigable water of the United
States or outside the United States; service as  farm  laborers;  casual
employment  and the first forty-five days of extra employment of employ-
ees not regularly in employment as otherwise defined herein; service  as
golf  caddies;  and service during all or any part of the school year or
regular vacation periods as a part-time worker of any person actually in
regular attendance during the day time as a student in an elementary  or
secondary  school.  THE  TERM  "EMPLOYMENT"  SHALL  INCLUDE  DOMESTIC OR
PERSONAL WORK IN A PRIVATE HOME. The term "employment" shall not include
the services of a licensed real estate broker or sales associate  if  it
be proven that (a) substantially all of the remuneration (whether or not
paid in cash) for the services performed by such broker or sales associ-
ate is directly related to sales or other output (including the perform-
ance  of  services)  rather  than to the number of hours worked; (b) the
services performed by the broker or sales associate are performed pursu-
ant to a written contract executed between such broker or sales  associ-
ate  and  the person for whom the services are performed within the past
twelve to fifteen months; and (c) the written contract provided  for  in
[paragraph] SUBPARAGRAPH (b) [herein] OF THIS PARAGRAPH was not executed
under duress and contains the following provisions:
  S  10.  The  commissioner  of  labor shall report to the governor, the
speaker of the assembly and the temporary president of the senate before
November 1, 2010 on the feasibility and practicality of allowing  domes-
tic  workers  to  organize  for  purposes  of  collective bargaining. In
preparing such report, the  commissioner  of  labor  will  consult  with
representatives  of  domestic  workers and individuals and agencies that
employ domestic workers,  and  relevant  state  agencies  including  the
public  employment  relations board. The report shall address the feasi-
bility of an employee organization formed in accordance with  the  State
Labor  Relations  Act, how bargaining units for such organizations could
be formed, whether there are any  unique  issues  which  arise  in  this
context  and  whether there are other possible frameworks for collective
organization or for ensuring the benefits  that  accompany  organization
for  domestic workers. The commissioner of labor shall also report, with
the assistance of an interagency working group which shall  include  but
not  be  limited  to  the  chair of the workers' compensation board, the
superintendent of insurance, the commissioner of health and the  commis-
sioner of economic development, on how best to provide easily accessible
educational  and informational material for domestic employers and work-

S. 2311--E                          6

ers. Such material shall cover employment benefits,  tax  and  insurance
laws.
  S  11.  This act shall take effect on the ninetieth day after it shall
have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.