One More Thing to Think About – Do I Need A Contract?
You are harried as you are trying to head out the door for a special night. You have helped the kids with homework, made their dinner, secured a babysitter and gotten dressed. But have you thought of everything? Does the new New Jersey Domestic Workers’ Bill of Rights Act, N.J.S.A. 34:11-69 et seq. (“the Act”), signed by Governor Phil Murphy on January 12, 2024, now require you to have a written contract for your babysitter?
Taking effect on July 1, 2024, the Act aims to address a widespread acknowledgment that domestic workers lack the protections afforded to other workers. The Covid-19 pandemic underscored this gap, bringing attention to the vulnerability of these workers. The Act is a culmination of years of research and surveys regarding the working conditions that domestic workers in New Jersey face, which led to a proposed Bill of Rights for Domestic Workers in September 2020. In January 2024, that Bill of Rights became a reality.
One of the protections afforded to domestic workers by the Act is a written contract. The Act mandates that employers provide domestic workers with a written contract detailing essential terms of employment. This contract must include the hourly wage, overtime wage, weekly schedule, frequency of payment, breaks, leave and sick time, paid holidays, any other benefits, modes of transportation, value of housing if provided, sleep and personal time for live-in workers, the term and any other terms as agreed to. The written agreement shall be signed and dated by all parties.
This requirement is based on a finding that domestic workers are often asked to perform tasks beyond their initially agreed-upon job duties. For instance, it is not uncommon for someone hired to be a nanny to be asked to do laundry or make meals, tasks that were never discussed during the hiring process. Additionally, since domestic workers operate within private family residences, work hours can be ambiguous, leading to underpayment for the actual work and hours performed. The Act intends to address these issues by ensuring that a written contract clearly defines the boundaries of the employment relationship.
“Domestic worker” is defined by the Act as a person who works in residence to
- provide care for a child, or
- provide care or companionship for a convalescing, sick or elderly person or person with a disability, or
- provide housekeeping or house cleaning services, or
- provide cooking services, or
- provide food or butler service, or
- park cars, or
- clean laundry, or
- provide gardening services, or
- provide personal organizing services, or
- provide any other domestic service.
The term includes part time and full time employees, as well as salaried and hourly employees. It also includes employees who are less than 18 years old. Finally, it includes workers who have more than one employer. The Act only applies to “domestic services” which are provided in or about a private home.
The Act does not include persons who are family members performing the work. Nor does it include house sitters, pet sitters, dog walkers, house repair/maintenance contractors, individuals paid through Medicare or Medicaid, or employees of businesses operated out of a private residence. While this definition and these exceptions suggest the babysitter in the above example is entitled to a written contract, there is one more exception that works to exclude the occasional babysitter.
That is, the entire Act does not apply to workers hired for casual work or for work totaling less than five hours per month. Casual work is defined as irregular, uncertain or incidental work that is outside the individual’s customary engagement. So, if the babysitter you hire is a student who is performing the services outside the school day, or a friend who babysits on occasion outside his/her normal work hours, that person is not considered a domestic worker even if they provide more than five hours of services a month. However, the exception is narrow. If the person’s primary vocation is babysitting, and they provide more than five hours of service per month for you, they would be classified a domestic worker and be subject to the Act’s provisions.
The Act also does not apply to independent contractors. However, both the IRS and the New Jersey Department of Labor use a very strict test for determining whether a worker is an independent contractor. If the employer controls work hours, gives instructions, requires that things be done in a certain sequence, then he/she is not an independent contractor. If the worker is performing duties in the usual course of business in your residence, i.e. preparing meals, then the worker is not an independent contractor. Finally, if the worker is not customarily engaged in an independently established trade, occupation, profession or business, then the worker is not an independent contractor. Moreover, the IRS has announced that it is looking very closely at domestic workers who have been classified as independent contractors. It is apparent that classifying the domestic worker as an independent contractor should be the exception rather than the rule.
In the event you are hiring someone who meets the definition of domestic worker, as set forth above, then the protections provided by the Act apply. As already discussed, this includes a written contract with the above enumerated terms. The written contract may not contain mandatory pre-dispute arbitration agreements, non-disclosure agreements, non-compete clauses or non-disparagement agreements. Further, the contract should be in English and in such other language as may be preferred by the worker. The Department of Labor, which is responsible for enforcing the Act, will be making model contracts available on its website. At last check, no model contracts were yet available. However, other organizations have issued model contracts which are very helpful. For sample agreements consult the following websites,
1) dol.gov/agencies/wb/Domestic-Workers and
2) domesticemployers.org/resources-and-faqs/templates.
The Act also requires that domestic workers be provided with uninterrupted paid rest periods of at least ten (10) minutes for every four consecutive hours worked, unless the nature of the work prevents the domestic worker from being relieved of all duties for such a period of time. If the domestic worker is not relieved of all work duties, an “on duty” rest period shall be provided. During such a period, the domestic worker may engage in personal activities such as resting, eating, drinking a beverage, making phone calls or other personal choices.
For every five consecutive hours worked, domestic workers must be provided an uninterrupted 30-minute meal break. This break can be unpaid if the domestic worker is relieved of all work duties and is permitted to leave the work site. If both of these conditions are not met, the break must be paid and the meal break is considered an “on duty” meal break. Again, during an on duty meal break, the domestic worker should be allowed to engage in personal activities. However, the “on-duty” breaks, both rest and meal breaks, are only allowed if they have been agreed to in the written contract. This agreement may be revoked at any time. Failure to comply with this requirement can create liability for additional pay to the domestic worker of up to two hours at the workers regular rate of compensation for each day that the meal or rest period was not provided.
Additionally, live-in domestic workers are entitled to a period of 24 hours of rest after working six consecutive days for the same employer. This day of rest may be unpaid.
As to termination, domestic workers are entitled to two weeks’ notice or four weeks for live in domestic workers. The notice requirement is dispensed with if the employer has a good-faith belief that the domestic worker has engaged in significant misconduct. If the required notice is not provided the employer will be liable for pay during the notice period.
The Act prohibits the practice of holding the original copies of a domestic worker’s personal documents and monitoring the activities of a domestic worker in a bathroom, his/her living quarters, while dressing, or during private communications.
Employers of domestic workers are now responsible to notify the employees of their rights pursuant to the Act and how to file a complaint when their rights are violated. Employers are also responsible to create and maintain records of the hours worked, the pay rate, meals and rest breaks, leave time earned and used, as well as the written contract. The Act makes it unlawful for an employer to interfere with, restrain or deny, or threaten retaliatory action against a worker for the exercise of any right set forth in the Act. This includes threats to report the worker or their family members to government agencies regarding citizenship or immigration status.
Complaints of violations shall be made within two (2) years of the violation with the Department of Labor or with a court of competent jurisdiction. A knowing violation will be considered a crime of the fourth degree. Otherwise, it is a disorderly persons offense.
The Department of Labor will be issuing regulations which set forth the procedure for filing a complaint with the department. For complaints filed with the department, violations may result in penalties and fines and restitution for lost wages and benefits. The restitution will include presumed damages. These damages will be set forth in the regulations which are forthcoming. A fine for violating the act can range from $100 to $4,000 for each day during which a violation continues.
Finally, the Act amends other legislation whose applicability did not previously extend to domestic workers. Now, the Law Against Discrimination, the Wage and Hour Law, the Worker Health and Safety Act, the Workers’
Compensation Law and the Unemployment Compensation Act all apply to domestic workers. There are fines associated with violating each of these laws. For instance, fines for violations of the Worker Health and Safety Act which can range from $975 to $13,653, with 50% going to the employee. For violations of the Wage and Hour Law an employer can be liable from $100 to $1,000. Penalties for violations of the Law Against Discrimination are much higher.
The changes brought about by the Act are significant for a type of employment that heretofore went largely unregulated. The ramifications of the changes are not yet fully known as the Act is new and the regulations have not yet been promulgated. Consequently, if you are hiring somebody to provide services for you in your private residence, make sure to determine if they meet the definition of domestic worker and to provide a written contract in the event that they do.
