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Nanny Rights: Special Protections for “Domestic Workers” in New York

by mjpospis on July 20, 2015

in Articles, Employment Discrimination, Sexual Harassment, Wage/Hour Issues

Nannies (live-in and otherwise) are a prominent feature of many wealthy households, particularly those in New York City.

The familial nature of the relationship may blur the line between what is proper and improper conduct. For example, the “workplace” is typically not an office, but rather the employer’s home; negotiations may be held at the kitchen table over breakfast, etc.

“Domestic workers” have certain rights that extend beyond those enjoyed by employees in a “traditional” employer-employee relationship. These rights and protections are embodied in New York’s relatively recent Domestic Workers’ Bill of Rights.

Protection Against Sexual (and Other Types of) Harassment

Among these protections is a separate section in the New York State Human Rights Law, section 296-b, which prohibits certain unlawful discriminatory practices relating to “domestic workers”.

That statute states that it is 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 performance by creating an intimidating, hostile, or offensive working environment. (Emphasis added.)

These protections only kick in if the worker is a “domestic worker” as defined in the statute. Section 296-b defines a “domestic worker” as that term is defined in Labor Law section 2(16), namely:

a person employed in a home or residence 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 individual

(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. (Emphasis and paragraphing added.)

Wage and Hour Issues

An employer must pay a “domestic worker” at least the minimum wage and overtime at one-and-one-half times the worker’s basic rate of pay after 40 hours of work in a calendar week (or after 44 hours, if the “domestic worker” resides in the home of their employer). Labor Law sec. 170.

The Domestic Workers’ Bill of Rights also gives domestic workers a day of rest (24 hours) every seven days, or overtime pay if they agree to work on that day; and three paid days of rest each year after one year of work for the same employer.

Categories: Articles, Employment Discrimination, Sexual Harassment, Wage/Hour Issues

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