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Is Your Employment Agreement With Your Nanny Illegal?

If you employ a person or are a person that performs domestic jobs within a household such as housekeeping, cleaning, childcare, cooking, home management, elder care, or other services of a domestic nature, you are likely affected by the passing of the Domestic Workers’ Bill of Rights. This newly passed law applies to domestic workers regardless of their immigration status and is enforced by the Attorney General’s office.

This law does not apply to the following individuals: (1) individuals that, on average, provide childcare for 16 hours or less per week or those who provide more but on a casual, irregular or intermittent basis (i.e. school vacation, etc.; (2) personal care attendants (PCAs); and (3) staffing agencies, employment agencies, or placement agencies.  This law went into effect on April 1, 2015. A brief overview follows.

First and foremost, an employer must provide a domestic worker with a notice of all state and federal laws that apply to domestic workers.  If you do not have a written employment agreement with your employee you should enter into one immediately.  The new law requires employers to maintain payroll records and other documentation regarding the time worked, overtime, breaks, other time off, other types of compensation, reimbursement, etc.  You must also provide and retain documentation regarding personal days, sick days, vacation days, transportation, health insurance, pay raises, severance, termination, etc.  Please consult an employment attorney to assist you in ensuring that you are complying with the numerous requirements of this law.  Remember, much of this statute is strict liability.  In other words, it does not matter if the violation is accidental or the result of an error or mistake especially in regard to maintaining records.

The law further requires that domestic workers earn at least the minimum wage of $9.00 per hour, which will increase to $10.00 per hour next year.  Domestic workers also must be given specific periods of rest time depending on how many hours they work.  Whether rest time will be paid or not should be part of the employment agreement, which needs to be in writing. Domestic workers are also entitled to overtime pay for work over 40 hours per week.  The only deductions an employer is permitted to take are those permitted by law (i.e. taxes, health insurance, etc.)  The employer can take additional deductions such as meals and beverages if it is agreed upon by the employee and is in writing.  Although, the amount and circumstances permitting the deductions have limitations and restrictions.  Lodging can only be deducted under certain circumstances.

The following issues, in particular, are not ones that most employers of domestic workers would be aware of or accustomed to.  For instance, an employer may now be responsible for unemployment insurance, workers compensation insurance, sick time, paid leave, parental leave, and other leave.  Employers of domestic workers must also provide their employees with reasonable access to a phone and internet. An employer must also protect the privacy of his/her domestic worker(s).  As an employer you cannot discriminate or retaliate against an employee for complaining or making complaints to agencies or authorities regarding discrimination and labor laws.  Lastly, if you employ a domestic worker that resides in your home or for whom you provide lodging and you terminate said employee without cause, said employee is entitled to written notice, 30 days of lodging, and/or severance pay.

Please contact us at info@cascanettlaw.com to ensure your employment agreement covers all aspects of the domestic worker law, that you are maintaining proper documentation and records, and to obtain all necessary information to prevent your unintentional violation of this law.  If you are a domestic worker and feel that your rights have been violated, contact us at info@cascanettlaw.com to understand your rights.

An Overview of Wage & Hour Laws

In Massachusetts, wage and hour laws are governed by the Federal Labor Standards Act (FLSA) and state labor laws, which are generally found in Mass. General Laws chs. 149-151. It is important for employers to adhere to wage and hour laws, as the penalties can be significant, even if the violation was not intentional. Penalties can include fines, double or triple awards, in addition to awards of costs and attorneys fees. Employees need to know their rights and that there are laws that protect their right to fair and prompt payment of wages.

What are the current minimum wages?

The current federal minimum wage is $7.25/hr but in Massachusetts the minimum hourly wage is $9.00/hr. Overtime pay is required for all employees that work more than 40 hours within any given workweek. It does require that the employee actually work over 40 hours (paid time- including sick, vacation, holiday, etc. is not considered for overtime assessment). It also has no bearing on what day of the week or shift is worked within the work week. Nor does it matter, with a few limited exceptions, that the 40 hours are worked over a period of a few days.

What do wage & hour laws say about national holidays?

Retail stores cannot force employees to work on New Year’s Day, Memorial Day, the Fourth of July, Labor Day, Columbus Day, or Veterans Day. Employees who choose to work on one of these holidays must be paid time and one-half. Further any non-exempt retail employees must be paid time and a half for working on Sunday.

Exempt vs. Non-exempt Employees

There are specific tests to determine whether an employee is “exempt” from the overtime requirement. Generally, to be an exempt employee one must be a salaried employee and in an administrative, executive and/or professional position. Some computer personnel and outside sales individuals are also exempt. It is imperative to consult a Massachusetts employment lawyer to determine the classification of employees as there are significant penalties for the misclassification of employees, even if it is an “honest mistake” and unintentional.

The manner and time period in which employees are paid is also regulated. The requirements are different for hourly versus salaried employees. Hourly employees cannot be paid less frequently than bi-weekly. Salaried employees cannot be paid less frequently than on a monthly basis. Nonetheless, all employees must also receive a pay slip, check stub or envelope showing the name of the employer; the name of the employee; the day; month and year; the number of hours worked; the hourly rate; and the amounts of deductions or increases made for the particular pay period.

Employees who are fired or let go must be paid all wages owed on the day of discharge. Employees who quit, retire, or leave employment for other reasons must be paid in full on their next regular payday. Commissions must also be paid when the amount of such commissions has been definitely determined and has become due and payable under the company’s plan.

If you believe your employer has violated a wage and hour law you should consult an attorney regarding your rights.

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