Relates to provisions regarding domestic workers and such workers' employment regulations concerning hours of labor and wages, employment restrictions and employment contracts.

---

S2311E-2009 Actions

• Jul 1, 2010: SUBSTITUTED BY A1470B
• Jun 29, 2010: AMENDED ON THIRD READING 2311E
• Jun 29, 2010: VOTE RECONSIDERED - RESTORED TO THIRD READING
• Jun 29, 2010: returned to senate
• Jun 29, 2010: RECALLED FROM ASSEMBLY
• Jun 2, 2010: referred to labor
• Jun 1, 2010: DELIVERED TO ASSEMBLY
• Jun 1, 2010: PASSED SENATE
• May 24, 2010: AMENDED ON THIRD READING 2311D
• May 10, 2010: AMENDED ON THIRD READING 2311C
• Mar 4, 2010: ADVANCED TO THIRD READING
• Mar 3, 2010: 2ND REPORT CAL.
• Mar 2, 2010: 1ST REPORT CAL.196
• Feb 23, 2010: REPORTED AND COMMITTED TO FINANCE
• Feb 8, 2010: PRINT NUMBER 2311B
• Feb 8, 2010: AMEND AND RECOMMIT TO CODES
• Feb 1, 2010: REPORTED AND COMMITTED TO CODES
• Jan 6, 2010: REFERRED TO LABOR
• Jun 30, 2009: PRINT NUMBER 2311A
• Jun 30, 2009: AMEND (T) AND RECOMMIT TO FINANCE
• Jun 2, 2009: REPORTED AND COMMITTED TO FINANCE
• Mar 9, 2009: REPORTED AND COMMITTED TO CODES
• Feb 17, 2009: REFERRED TO LABOR

S2311E-2009 Calendars

Active List: Jun 30, 2010 , Active List: Jul 1, 2010 , Floor Calendar: Jun 30, 2010 , Floor Calendar: Jul 1, 2010

S2311E-2009 Votes

S2311E-2009 Memo

BILL NUMBER:S2311E               REVISED 08/31/10

TITLE OF BILL:

An act to amend the labor law, the executive law and the workers'
compensation law, in relation to establishing regulations regarding
employment of domestic workers including hours of labor, wages and
employment contracts

PURPOSE OR GENERAL IDEA OF BILL:

This bill would provide domestic workers with a Domestic Workers' Bill
of Rights and would set out the basic responsibilities of employers and
employees.

SUMMARY OF SPECIFIC PROVISIONS:

1) one day of rest every calendar week, waivable by the worker with pay
for that day at the overtime rate of 1.5. The day of rest will, whenever
possible, coincide with the traditional day of religious worship;

2) overtime pay after 40 hours of work per week (44 hours for live-in
domestic workers);

3) after 1 year of work with the same employer, 3 days of rest per year
at the regular rate of compensation;

4) it will be 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 a term or condition of the work-
er's employment;
(ii) submission to or rejection of such conduct by a worker is used as
the basis for employment decisions; or
(iii) such conduct has the purpose or effect of unreasonably interfering
with an worker's job performance by creating an intimidating, hostile or
offensive working environment; or
subject a domestic worker to harassment based on gender, race, (b) reli-
gion or national origin, where such harassment has the effect of unrea-
sonably interfering with work performance by creating a hostile working
environment;

5) disability insurance to part time domestic workers;

6) Department of Labor given wage and hour enforcement powers for domes-
tic workers; and

7) Department of Labor is to complete by November 2010 a report on the
feasibility and practicality of collective bargaining for the domestic
worker workforce.

JUSTIFICATION:

Domestic workers are among the most oppressed workers in the United
States. They are often abused and mistreated and frequently work under
harsh conditions. They are regularly forced by employers to work seven
days a week and they receive little or no pay for their services. They
are also often physically, emotionally and sexually assaulted and
abused.

Many domestic workers come to the United States legally to escape pover-
ty in their country. The main reason for their employment is to earn
money to send to their families and support their children. Many domes-
tic workers are isolated, exploited and psychologically abused by their
employers, thus often creating in them the belief they will suffer seri-
ous harm if they leave their jobs. In addition, many domestic workers
fall through the cracks of U.S.  government. Therefore the burden of
securing employer compliance becomes that of the domestic worker. Even
if a worker leaves their employer, he or she is not guaranteed time to
remain in the United States to seek legal redress.

The problems of domestic workers underline the need for legislation to
protect the rights of male and female employees working in homes.

PRIOR LEGISLATIVE HISTORY:
2009; Similar legislation was reported from Senate Labor and Codes
Committees but died in Finance; similar legislation passed the Assembly
2008: Similar legislation (A.628B) died in Assembly Labor Committee
2007: Similar legislation (A. 628B) died in Assembly Labor Committee
2006: Similar legislation (S.3547/A.2804) died in Senate Labor Committee
and Assembly Codes Committee
2005: Similar legislation (S.3547/S.2804) died in Senate Labor Committee
and Assembly Codes Committee
2004: Similar legislation (A.10948A) died in Assembly Labor Committee

FISCAL IMPLICATIONS:
Minimal.

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become law.

S2311E-2009 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   2311--E
      Cal. No. 196

                         2009-2010 Regular Sessions

                              I N  SENATE

                              February 17, 2009
                                 ___________

  Introduced by Sens. SAVINO, ADAMS, ADDABBO, BRESLIN, DIAZ, DILAN, DUANE,
    ESPADA, FOLEY, HASSELL-THOMPSON, HUNTLEY, KLEIN, KRUEGER, OPPENHEIMER,
    PADAVAN,  PARKER,  PERALTA,  PERKINS,  SAMPSON, SCHNEIDERMAN, SERRANO,
    SQUADRON, STACHOWSKI,  STAVISKY,  STEWART-COUSINS,  THOMPSON  --  read
    twice  and  ordered  printed,  and when printed to be committed to the
    Committee on Labor --  reported  favorably  from  said  committee  and
    committed  to  the  Committee on Codes -- reported favorably from said
    committee and committed to  the  Committee  on  Finance  --  committee
    discharged, bill amended, ordered reprinted as amended and recommitted
    to  said committee -- recommitted to the Committee on Labor in accord-
    ance with Senate Rule 6,  sec.  8  --  reported  favorably  from  said
    committee  and  committed  to  the  Committee  on  Codes  -- committee
    discharged, bill amended, ordered reprinted as amended and recommitted
    to said committee  --  reported  favorably  from  said  committee  and
    committed  to the Committee on Finance -- reported favorably from said
    committee, ordered to first and second  report,  ordered  to  a  third
    reading,  amended  and  ordered  reprinted, retaining its place in the
    order of third reading -- again amended and ordered reprinted, retain-
    ing its place in the order of third reading -- passed  by  Senate  and
    delivered  to  the  Assembly, recalled, vote reconsidered, restored to
    third reading, amended and ordered reprinted, retaining its  place  in
    the order of third reading

  AN  ACT  to  amend  the  labor  law,  the executive law and the workers'
    compensation law, in relation to  establishing  regulations  regarding
    employment  of  domestic  workers  including hours of labor, wages and
    employment contracts

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Legislative findings and intent. Many thousands of domestic
  workers  are  employed  in  New York state as housekeepers, nannies, and
  companions to the elderly. The labor of domestic workers is  central  to

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD00150-19-0

 S. 2311--E                          2

  the ongoing prosperity that the state enjoys, and yet, despite the value
  of  their  work,  domestic workers do not receive the same protection of
  many state laws as do workers  in  other  industries.  Domestic  workers
  often  labor under harsh conditions, work long hours for low wages with-
  out benefits or job security, are isolated in their workplaces, and  are
  endangered  by  sexual  harassment  and  assault,  as  well  as  verbal,
  emotional and psychological abuse. Moreover, many  domestic  workers  in
  the  state  of  New York are women of color who, because of race and sex
  discrimination, are particularly vulnerable to unfair  labor  practices.
  Additionally,  domestic  workers  are  not  afforded by law the right to
  organize labor unions for the purpose of collective bargaining.
    The legislature finds that because domestic workers care for the  most
  important  elements of their employers' lives, their families and homes,
  it is in the interest of employees, employers, and  the  people  of  the
  state  of  New  York  to  ensure that the rights of domestic workers are
  respected, protected, and enforced.
    S 2. Section 2 of the labor law is amended by adding a new subdivision
  16 to read as follows:

    16. "DOMESTIC WORKER" SHALL MEAN A PERSON EMPLOYED IN A HOME OR  RESI-
  DENCE  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 INDI-
  VIDUAL (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.
    S 3. The executive law is amended by adding a  new  section  296-b  to
  read as follows:

    S  296-B. UNLAWFUL DISCRIMINATORY PRACTICES RELATING TO DOMESTIC WORK-
  ERS. 1. FOR THE PURPOSES OF THIS SECTION:  "DOMESTIC WORKERS" SHALL HAVE
  THE MEANING SET FORTH IN SECTION TWO OF THE LABOR LAW.
    2. IT SHALL BE 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 PERFORM-
  ANCE BY CREATING AN INTIMIDATING, HOSTILE, OR OFFENSIVE WORKING ENVIRON-
  MENT.
    S  4. Subdivisions 5 and 6 of section 292 of the executive law, subdi-
  vision 5 as amended by chapter 851 of the laws of 1965 and subdivision 6
  as amended by chapter 166 of the laws of 2000, are amended  to  read  as
  follows:


 S. 2311--E                          3

    5.  The  term "employer" does not include any employer with fewer than
  four persons in his OR HER employ EXCEPT AS SET  FORTH  IN  SECTION  TWO
  HUNDRED NINETY-SIX-B OF THIS TITLE.
    6. The term "employee" in this article does not include any individual
  employed  by  his  or  her  parents, spouse or child, or in the domestic
  service of any person EXCEPT AS SET FORTH IN SECTION TWO  HUNDRED  NINE-
  TY-SIX-B OF THIS TITLE.
    S  5. Subdivision 3 of section 160 of the labor law is amended to read
  as follows:

    3. For all other employees, except those engaged in farm [or  domestic
  service]  WORK  and  those  affected  by subdivision four of section two
  hundred [and] twenty OF THIS CHAPTER, eight hours.
    S 6. The labor law is amended by adding a new section 170 to  read  as
  follows:

    S  170.  HOURS OF LABOR FOR DOMESTIC WORKERS. NO PERSON OR CORPORATION
  EMPLOYING A DOMESTIC WORKER AS DEFINED IN SUBDIVISION SIXTEEN OF SECTION
  TWO OF THIS CHAPTER, SHALL REQUIRE ANY DOMESTIC WORKER TO WORK MORE THAN
  FORTY HOURS IN A WEEK, OR FORTY-FOUR HOURS IN A WEEK FOR DOMESTIC  WORK-
  ERS  WHO  RESIDE  IN  THE  HOME  OF  THEIR EMPLOYER; UNLESS THEY RECEIVE
  COMPENSATION FOR OVERTIME WORK AT A RATE WHICH IS AT LEAST ONE AND  ONE-
  HALF TIMES THE WORKER'S NORMAL WAGE RATE.
    S  7.  Subdivision  1  of  section  161 of the labor law is amended by
  adding a new undesignated paragraph to read as follows:

    EVERY PERSON EMPLOYED AS A DOMESTIC WORKER AS DEFINED  IN  SUBDIVISION
  SIXTEEN  OF SECTION TWO OF THIS CHAPTER, SHALL BE ALLOWED AT LEAST TWEN-
  TY-FOUR CONSECUTIVE HOURS OF REST IN EACH AND EVERY CALENDAR WEEK.    NO
  PROVISION OF THIS PARAGRAPH SHALL PROHIBIT A DOMESTIC WORKER FROM VOLUN-
  TARILY  AGREEING TO WORK ON SUCH DAY OF REST REQUIRED BY THIS PARAGRAPH,
  PROVIDED THAT THE WORKER IS COMPENSATED AT THE  OVERTIME  RATE  FOR  ALL
  HOURS  WORKED ON SUCH DAY OF REST. THE DAY OF REST AUTHORIZED UNDER THIS
  SUBDIVISION SHOULD, WHENEVER POSSIBLE, COINCIDE WITH THE TRADITIONAL DAY
  RESERVED BY THE DOMESTIC WORKER FOR RELIGIOUS  WORSHIP.    IN  ADDITION,
  AFTER ONE YEAR OF WORK WITH THE SAME EMPLOYER A DOMESTIC WORKER SHALL BE
  ENTITLED  TO  AT  LEAST  THREE DAYS OF REST IN EACH CALENDAR YEAR AT THE
  REGULAR RATE OF COMPENSATION.
    S 8. Subdivision 5 of section 651 of the  labor  law,  as  amended  by
  chapter 640 of the laws of 2005, is amended to read as follows:

    5. "Employee" includes any individual employed or permitted to work by
  an  employer in any occupation, but shall not include any individual who
  is employed or permitted to work: (a) ON A CASUAL BASIS in service as  a
  part time baby sitter in the home of the employer[; or someone who lives
  in  the home of an employer for the purpose of serving as a companion to
  a sick, convalescing or elderly person, and whose  principal  duties  do
  not  include  housekeeping];  (b) in labor on a farm; (c) in a bona fide
  executive, administrative, or professional capacity; (d) as  an  outside
  salesman;  (e)  as  a  driver  engaged  in operating a taxicab; (f) as a
  volunteer, learner or apprentice by a corporation, unincorporated  asso-
  ciation,  community  chest,  fund  or  foundation organized and operated
  exclusively for religious, charitable or educational purposes,  no  part
  of the net earnings of which inures to the benefit of any private share-
  holder or individual; (g) as a member of a religious order, or as a duly
  ordained,  commissioned  or  licensed minister, priest or rabbi, or as a
  sexton, or as a christian science reader; (h) in or for such a religious
  or charitable institution, which work is incidental to or in return  for
  charitable  aid conferred upon such individual and not under any express
  contract of hire; (i) in or for such a religious, educational or  chari-

 S. 2311--E                          4

  table  institution if such individual is a student; (j) in or for such a
  religious, educational or charitable institution if the earning capacity
  of such individual is impaired by age or by physical or mental deficien-
  cy  or injury; (k) in or for a summer camp or conference of such a reli-
  gious, educational or charitable institution for  not  more  than  three
  months  annually;  (l) as a staff counselor in a children's camp; (m) in
  or for a college or university fraternity, sorority, student association
  or faculty association, no part of the net earnings of which  inures  to
  the  benefit  of  any  private  shareholder  or individual, and which is
  recognized by such college  or  university,  if  such  individual  is  a
  student;  (n)  by  a federal, state or municipal government or political
  subdivision thereof. The exclusions from the term  "employee"  contained
  in  this  subdivision  shall be as defined by regulations of the commis-
  sioner; or (o) as a volunteer at a recreational or amusement  event  run
  by  a  business  that operates such events, provided that no single such
  event lasts longer than eight consecutive days and no more than one such
  event concerning substantially the same subject  matter  occurs  in  any
  calendar  year.  Any  such volunteer shall be at least eighteen years of
  age. A business seeking coverage under this paragraph shall notify every
  volunteer in writing, in language acceptable to the  commissioner,  that
  by  volunteering  his  or her services, such volunteer is waiving his or
  her right to receive the minimum wage pursuant  to  this  article.  Such
  notice shall be signed and dated by a representative of the business and
  the volunteer and kept on file by the business for thirty-six months.
    "Employee"  also includes any individual employed or permitted to work
  in any non-teaching capacity by a school district or  board  of  cooper-
  ative  educational  services  except that the provisions of sections six
  hundred fifty-three through six hundred fifty-nine of this article shall
  not be applicable in any such case.
    S 9. The opening paragraph of subdivision 5 and the opening  paragraph
  of  paragraph  A of subdivision 6 of section 201 of the workers' compen-
  sation law, the opening paragraph of subdivision 5 as amended by chapter
  205 of the laws of 1993 and the opening  paragraph  of  paragraph  A  of
  subdivision 6 as amended by chapter 903 of the laws of 1986, are amended
  to read as follows:

    "Employee" means a person engaged in the service of an employer in any
  employment  defined  in  subdivision six of this section, except a minor
  child of the employer, [except  a  domestic  or  personal  worker  in  a
  private  home  who is employed for less than forty hours per week by any
  one employer, and] except a duly  ordained,  commissioned,  or  licensed
  minister,  priest  or  rabbi,  a  sexton, a christian science reader, or
  member of a religious order, or an executive officer  of  a  corporation
  who  at  all times during the period involved owns all of the issued and
  outstanding stock of the corporation and holds all of the offices pursu-
  ant to paragraph (e) of section seven hundred fifteen  of  the  business
  corporation  law  or  two executive officers of a corporation who at all
  times during the period involved between them own all of the issued  and
  outstanding  stock  of  such  corporation  and  hold  all  such  offices
  provided, however, that each officer must own  at  least  one  share  of
  stock, except as provided in section two hundred twelve of this article,
  or  an  executive  officer  of  an incorporated religious, charitable or
  educational institution, or persons engaged in a professional or  teach-
  ing  capacity  in or for a religious, charitable or educational institu-
  tion, or volunteers in or for a  religious,  charitable  or  educational
  institution,  or  persons  participating in and receiving rehabilitative
  services in a sheltered workshop operated by a religious, charitable  or

 S. 2311--E                          5

  educational  institution under a certificate issued by the United States
  department of labor, or recipients of charitable aid from a religious or
  charitable institution who perform work in or for the institution  which
  is  incidental  to  or in return for the aid conferred, and not under an
  express contract of hire. The terms  "religious,  charitable  or  educa-
  tional  institution"  mean  a  corporation,  unincorporated association,
  community chest, fund or foundation organized and  operated  exclusively
  for  religious,  charitable  or educational purposes, no part of the net
  earnings of which inure to the benefit of  any  private  shareholder  or
  individual.
    "Employment"  means  employment  in  any trade, business or occupation
  carried on by an employer, except that the following shall not be deemed
  employment under this article:  services  performed  for  the  state,  a
  municipal corporation, local governmental agency, other political subdi-
  vision  or  public authority; employment subject to the federal railroad
  unemployment insurance act; service performed on or  as  an  officer  or
  member  of  the  crew  of  a vessel on the navigable water of the United
  States or outside the United States; service as  farm  laborers;  casual
  employment  and the first forty-five days of extra employment of employ-
  ees not regularly in employment as otherwise defined herein; service  as
  golf  caddies;  and service during all or any part of the school year or
  regular vacation periods as a part-time worker of any person actually in
  regular attendance during the day time as a student in an elementary  or
  secondary  school.  THE  TERM  "EMPLOYMENT"  SHALL  INCLUDE  DOMESTIC OR
  PERSONAL WORK IN A PRIVATE HOME. The term "employment" shall not include
  the services of a licensed real estate broker or sales associate  if  it
  be proven that (a) substantially all of the remuneration (whether or not
  paid in cash) for the services performed by such broker or sales associ-
  ate is directly related to sales or other output (including the perform-
  ance  of  services)  rather  than to the number of hours worked; (b) the
  services performed by the broker or sales associate are performed pursu-
  ant to a written contract executed between such broker or sales  associ-
  ate  and  the person for whom the services are performed within the past
  twelve to fifteen months; and (c) the written contract provided  for  in
  [paragraph] SUBPARAGRAPH (b) [herein] OF THIS PARAGRAPH was not executed
  under duress and contains the following provisions:

    S  10.  The  commissioner  of  labor shall report to the governor, the
  speaker of the assembly and the temporary president of the senate before
  November 1, 2010 on the feasibility and practicality of allowing  domes-
  tic  workers  to  organize  for  purposes  of  collective bargaining. In
  preparing such report, the  commissioner  of  labor  will  consult  with
  representatives  of  domestic  workers and individuals and agencies that
  employ domestic workers,  and  relevant  state  agencies  including  the
  public  employment  relations board. The report shall address the feasi-
  bility of an employee organization formed in accordance with  the  State
  Labor  Relations  Act, how bargaining units for such organizations could
  be formed, whether there are any  unique  issues  which  arise  in  this
  context  and  whether there are other possible frameworks for collective
  organization or for ensuring the benefits  that  accompany  organization
  for  domestic workers. The commissioner of labor shall also report, with
  the assistance of an interagency working group which shall  include  but
  not  be  limited  to  the  chair of the workers' compensation board, the
  superintendent of insurance, the commissioner of health and the  commis-
  sioner of economic development, on how best to provide easily accessible
  educational  and informational material for domestic employers and work-

 S. 2311--E                          6

  ers. Such material shall cover employment benefits,  tax  and  insurance
  laws.
    S  11.  This act shall take effect on the ninetieth day after it shall
  have become a law.