October 20, 2021

Volume XI, Number 293

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Time Is Money: A Quick Wage-Hour Tip on … Compensating Domestic Workers in New York

Many New York families employ domestic workers –individuals who care for a child, serve as a companion for a sick, convalescing or elderly person, or provide housekeeping or any other domestic service. They may be unaware of federal and New York requirements that guarantee those domestic workers minimum wage for all hours worked, paid meal breaks, and overtime compensation.

In addition, New York imposes specific requirements on employers regarding initial pay notices, pay frequency, and pay statements that also apply to persons who employ domestic workers.

To avoid inadvertent wage and hour violations, it is important that persons who employ domestic workers in New York understand the relevant laws regarding domestic workers and approach what many understandably consider a personal relationship as a formal, business one for wage and hour purposes.

Legal Landscape

At the federal level, the Fair Labor Standards Act (“FLSA”) covers persons employed in domestic service in private homes.

At the state law level, two wage and hour laws apply to domestic workers in New York: (i) the Domestic Workers’ Bill of Rights (“DWBR”) and (ii) the New York Labor Law.

Although not widely publicized, the DWBR has been in effect since November 29, 2010 and covers all domestic workers – regardless of their immigration status – except for two categories: (a) those employed on a “casual basis,” “such as those who occasionally babysit or who do other household services for a limited amount of time,” and (b) caregivers related to the employer by blood, marriage or adoption, and those who provide companionship services and are employed by someone outside the family, such as a third-party agency.  See DWBR Facts for Employers and DWBR Fact Sheet.

Minimum Wage

Under both federal and New York law, domestic workers must be paid at least the minimum wage for all non-overtime hours (currently, $15 per hour in New York City, $14 per hour in Long Island and Westchester, and $12.50 in the remainder of the state).

However, under the DWBR, the length of the workweek for overtime calculation purposes varies based on whether the domestic worker “lives in” the employer’s home – a residential domestic worker.  For non-residential domestic workers, the workweek is the same as federal law: 40 hours a week, meaning that the overtime pay requirement is triggered after 40 hours.  For residential domestic workers, however, the workweek is 44 hours a week, meaning that the overtime pay requirements is triggered only after 44 hours.

Notably, under the DWBR, if an employer gives a domestic worker meals and/or lodging, the employer may be granted a specific credit toward the minimum wage paid to the worker, though the amount of nor calculation for such credit is not included in the DWBR fact sheet for employers (“Employer Fact Sheet”) or other related materials.  Instead, the Employer Fact Sheet advises employers to call 1-888-5-LABOR for more information.

Meal and Break Periods

Under the DWBR, domestic workers who work a shift of more than 6 hours on any day are entitled to at least 30 minutes free from duty for a meal period.  The DWBR does not proscribe when this meal break must be provided or taken.  The meal period does not need to be paid.

While not required, if an employer chooses to give an employee short (10 to 15 minute) breaks, consistent with the FLSA, such breaks are considered time worked and cannot be deducted from a domestic worker’s pay.

Days Off /Rest Periods

While the FLSA does not require payment for time not worked, such as vacations, the DWBR requires employers to provide domestic workers with at least three paid days off after one year of work.  For each day of paid rest the employee must be paid at their regular rate of pay for the

average number of hours they work on a normal workday.  Part time workers receive one day of paid rest for working, on average, fewer than 20 hours per week for an employer over the last year, two days of paid rest for working an average of 20 but fewer than 30 hours per week, and three days of paid rest for working 30 or more hours per week.  If an employer provides a domestic worker with three days of paid leave, regardless of the type of leave it is (e.g., sick leave, vacation leave), the employer’s obligation under the law is met.  See DWBR FAQs at p. 3.

In addition, under the DWBR, domestic workers other than those employed by an agency to provide “companionship services,” such as caring for an elderly person, must receive one day (24 hours) of rest per week upon a mutually agreeable day, ideally on the employee’s day of worship.  If the domestic worker agrees to work on his/her rest day, the worker must receive overtime pay.  See DWBR Employee Fact Sheet.

Overtime

In New York, unless domestic workers are employed by an agency to provide “companionship services, they must be paid overtime.  See DWBR Employee Fact Sheet. Specifically, employers must pay in-scope domestic workers overtime at 1 1/2 times the employee’s “basic rate” after 40 hours of work in a calendar week for non-residential domestic workers and after 44 hours of work in a week for residential domestic workers.

In contrast, under federal law, domestic service workers who reside in the employer’s home and are employed by an individual, family or household are exempt from overtime.

Unhelpfully, the DWBR does not provide any guidance on the phrase “lives in [the employer’s] home.”  To the extent that the federal standard is relevant, under the FLSA, to be a live-in domestic worker, the worker must reside on the employer’s premises either “permanently” or for “extended periods of time.”  A worker resides on the employer’s premises permanently “when he or she lives, works, and sleeps on the employer’s premises seven days per week and therefore has no home of his or her own other than the one provided by the employer under the employment agreement.”  “A worker resides on the employer’s premises for an extended period of time when he or she lives, works and sleeps on the employer’s premises for five days a week (120 hours or more). If a domestic worker spends less than 120 hours per week working and sleeping on the employer’s premises, but spends five consecutive days or nights residing on the premises, this also constitutes an extended period of time.”  See U.S. Department of Labor, Wage and Hour Division Fact Sheet #79B (September 2013).

Hours Worked

Under both federal and New York law, employers only need to pay domestic workers for hours worked.   While this concept seems straightforward, its application can be challenging, particularly when a domestic worker is a live-in.  The U.S. Department of Labor advises that “[w]hen a live-in worker engages in typical private pursuits such as eating, sleeping, entertaining, and other periods of complete freedom from all duties, he or she does not have to be paid for that time.”  See U.S. DOL Fact Sheet #79B.  Put slightly differently, “domestic service employees (including live-in employees) who have been completely relieved from duty and are able to use the time for their own purposes—to go to a movie, run a personal errand, attend a parent-teacher conference— need not be paid for this time.”  Id.

Similarly, the New York Minimum Wage Order for Miscellaneous Industries states, “a residential employee – one who lives on the premises of the employer – shall not be deemed to be permitted to work or required to be available for work: (1) during his or her normal sleeping hours solely because he is required to be on call during such hours; or (2) at any other time when he or she is free to leave the place of employment.” 12 NYCRR § 142-2.1(b).  A New York State Department of Labor Opinion Letter from 2010 (after the DWBR was in effect) confirms that “[w]ages need not be paid to your nanny during her normal sleeping hours” and further indicates that payment of wages is not required during periods when the nanny is “free to leave.”  See Opinion Letter RO-10-0075.  The letter also states (rather obviously) that a domestic worker serving as a nanny is not free to leave when a child’s parents are absent from the residence.

With respect to sleep time, under the FLSA, an employer can exclude up to 8 hours a night as sleep time for “permanent” live-in domestic workers “as long as the employee is paid for some other hours during the workweek.”  For non-permanent domestic workers who reside with an employer for “extended periods of time,” an employer can exclude up to 8 hours a night “as long as the employee is paid for at least 8 hours during the 24-hour period.”  In both cases, the predicates for excluding sleep time from hours worked are (i) a reasonable agreement to exclude sleep and (ii) private quarters for the employee.  See DOL Fact Sheet #79D.  The following limitations apply: (i) any interruption to sleep time must be paid and (ii) an employee must get reasonable periods of uninterrupted sleep totaling at least five hours otherwise no sleep time can be excluded.

Pay Frequency:

Under the DWBR, employers must pay domestic workers each week, either in cash or by check.

Notice of Pay Rate:

Under New York State Wage Theft Prevention Act, employers must provide domestic workers with a written notice that lists the regular and overtime rates of pay, how often the employee is paid, the regular payday, the official name of the employer, the employer’s address and phone number, and allowances taken as part of the minimum wage (meal and lodging deductions).

The notice must be given in English and in the employee’s primary language.

The employer can use its own notice as long as it is compliant or one of the New York State Department of Labor’s sample forms.

Wage Statement (Pay Stub):

Per the DWBR, each week, the domestic worker must receive a written statement that shows (i) the number of hours worked; (ii) gross pay (total before deductions); and (iii) any deductions for taxes or other money taken out of the domestic worker’s pay.

Domestic workers must agree in writing to any deductions from their pay.  An employer can only take deductions authorized by law.  Domestic workers cannot be charged for breakage, supplies, and equipment.

What Employers Should Do

Employers should confirm that their domestic worker arrangements are fully compliant with New York state law – that is, that they compensate their domestic workers for all hours worked at the applicable minimum wage on a weekly basis with a compliant wage statement, correctly calculate overtime pay, provide appropriate paid/unpaid meal, rest periods, and days off, and provide a notice of pay rate if not already supplied upon hire.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XI, Number 250
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About this Author

Carly Baratt, Epstein Becker Law Firm, New York, Health Care, Labor and Employment Litigation Attorney
Associate

Carly Baratt is an Associate in the Employment, Labor & Workforce Management and Litigation & Business Disputes practices, in the New York office of Epstein Becker Green.

Ms. Baratt:

  • Represents clients in employment-related litigation on a broad array of matters, including claims of discrimination, harassment, retaliation, wrongful termination, and breach of employment contract

  • Counsels clients in...

212-351-4674
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