AG sued over the Massachusetts Domestic Workers Bill of Rights
A Cambridge-based au pair agency and a host family sued Attorney General Maura Healey last week to stop the application of the Massachusetts Domestic Workers Bill of Rights and the supporting regulations to au pair host families.
According to their civil complaint, Cultural Care Au Pair sued because the Domestic Workers law and regulations will increase the amount host families are required to pay au pairs and will also add some additional paperwork responsibilities.
The complaint also suggests it is an "impropriety to apply labor laws to a cultural exchange program" and that host families will not invest "emotional capital" "in treating their au pairs like family members ... if the au pairs hold the status and involve the cost of laborers."
The labor and employment laws Cultural Care Au Pair are concerned with were triggered by the state Domestic Workers Bill of Rights law, which went into effect on April 1, 2015. The law applies to workers who provide any service of a domestic nature within a household, including:
home management, or
caring for someone who is old or ill.
M.G.L. c. 149, s. 190; 940 CMR 32.02.
Until this new state law, host families had been operating under the federal rules for au pairs, which, among other things, allows the payment of a stipend of $195.75 for up to 45 hours a week of work (computed by multiplying 45 hours times the federal minimum wage of $7.25/hr, and deducting a 40% room and board credit as set by the U.S. Department of Labor).
The Massachusetts law, however, bumps this up to $445.40 per week for a 40 hour work week, including a single occupancy room.
The Plaintiffs argue that for many au pair host families, this is unaffordable.
Cultural Care Au Pair brings federal preemption and commerce clause claims. Essentially, these complicated legal doctrines boil down to arguments that Congress intended to treat au pair programs on a national basis, and that state laws that change the requirements state-by-state cannot be allowed to interfere with these federal objectives.
More broadly, what rights do domestic workers have under the Massachusetts Domestic Workers Bill of Rights and related regulations?
The laws ensure that domestic workers:
Are paid no less than the minimum wage of $10 an hour (going up to $11 an hour as of January 1, 2017);
Are paid at the time-and-a-half overtime rate for all hours worked over 40 per week;
Are provided reasonable rest periods, whether paid or unpaid;
Receive one day off a week and two consecutive days off a month if they work more than 40 hours a week (for live-in domestic workers);
Are provided a notice of state and federal laws that apply to them specifically;
Can request a written evaluation from their employer;
Have a right to privacy in their living area and in their correspondence with friends, family and others;
Have a right to reasonable access to telephones and the Internet without charge (for live-in domestic workers); and
Are provided a written agreement regarding the terms and conditions of employment, including sick and vacation leave policies, if they work 16 or more hours a week;
This last piece, the written agreement, essentially creates a requirement for an employment contract. The regulations flesh it out this way:
An employer who employs a domestic worker for 16 hours or more per week shall provide to the domestic worker, and retain for a period of three years from the date when services were performed, signed and dated by both the worker and employer, a written agreement in a language or languages easily understood by both the worker and employer(s), regarding the following information:
(a) the rate of pay, including overtime and additional compensation for added duties or multilingual skills;
(b) working hours, including meal periods and other time off;
(c) if applicable, the provisions for days of rest, sick days, vacation days, personal days, holidays, transportation, health insurance, severance and yearly raises and whether or not earned vacation days, personal days, holidays, severance, transportation and health insurance costs are paid or reimbursed;
(d) any fees or other costs, including costs for meals and lodging;
(e) the responsibilities, including regularity, associated with the job;
(f) the process for raising and addressing grievances and additional compensation if new duties are added;
(g) the right to collect workers' compensation benefits if injured on the job;
(h) if applicable, the circumstances under which the employer may enter the domestic worker's designated living space on the employer's premises;
(i) the required notice of employment termination by the employer and by the domestic worker;
(j) any additional benefits afforded to the domestic worker by the employer; and
(k) for live-in domestic workers only, a description of what the employer deems as cause for purposes of immediate termination and removal within 48 hours from the employer's home without severance pay. An employer need not list all conduct that would constitute cause for termination but shall make a good faith effort to describe the circumstances that would result in the worker's loss of lodging and severance.
940 CMR 32.04(3)
This written agreement requirement is most interesting given that it is fairly unusual in American employment law. In many European countries, by contrast, it is typical for an employment contract to be required that sets out the terms and conditions of work. The US, on the other hand, operates on an at-will basis, and employment contracts are much less typical (nevermind required). The Massachusetts Domestic Workers Bill of Rights and accompanying regulations essentially includes an employment contract requirement.
The law also imposes strict recordkeeping requirements on employers, including records of wages and hours to be maintained for three years and time sheets completed, also about which Cultural Care Au Pair complain.
Without having researched the history of the federal au pair program and accompanying legislation, I do not see this case succeeding. The federal and state programs and obligations are not necessarily inconsistent, and there does not appear to be a specific preemption clause set within the federal legislation.
There are many times in which federal and state labor and employment laws sit side by side, and the strictest ends up governing. The most common example of this is the minimum wage -- where the federal minimum is currently $7.25 while the state is currently $10. It has long since been established that the state minimum wage law is not preempted simply because it is different or higher.
Either way, it will likely be a long road ahead for Cultural Care Au Pair, the AG, and this case. I will be following it with interest and will report back.
If I can help you with questions relating to the Massachusetts Domestic Workers Bill of Rights, contact me.