OLR Bill Analysis

SB 393

AN ACT CONCERNING DOMESTIC WORKERS.

SUMMARY:

This bill expands minimum wage and overtime laws to include all domestic workers (except irregular, intermittent, and casual babysitters) and changes the threshold for determining when employers must provide workers' compensation coverage to them.

The bill also has several provisions that apply only to certain domestic workers and their employers. These provisions do not apply to (1) personal care attendants (PCAs) providing services under a state-funded program (e.g., the Connecticut Home Care Program for Elders) or (2) irregular, intermittent, and casual babysitters. Among other things, these provisions require employers of these domestic workers to:

1. annually provide 72 hours of paid leave to part-time domestic workers and 120 hours of paid leave to full-time domestic workers,

2. provide severance pay to domestic workers terminated in violation of the bill's advance termination notice requirements, and

3. provide domestic workers with certain work-related written information when they are hired.

For these domestic workers, the bill also:

1. extends coverage under the employment-related anti-discrimination and harassment laws administered by the Commission on Human Rights and Opportunities (CHRO),

2. prohibits employers from requiring them to work more than six days in a calendar week unless they agree and receive overtime pay,

3. provides certain privacy protections and protections against employer retaliation, and

4. allows the Department of Labor (DOL) to enforce the bill.

Lastly, the bill allows the labor commissioner to (1) establish an outreach and education program for domestic workers and their employers and (2) contract with community-based and legal services organizations to help disseminate information to domestic workers and help them prepare and file complaints with DOL.

EFFECTIVE DATE: January 1, 2017, except for the provision about domestic worker outreach and education programs and contracting, which is effective upon passage.

1 — MINIMUM WAGE AND OVERTIME

The bill expands the definition of “employee” under the state's minimum wage and overtime laws to include all domestic workers except those who babysit on an irregular and intermittent or casual nature. This requires people who directly employ domestic workers to work in their homes (“consumer employers”) to meet (1) minimum wage and overtime pay requirements for domestic workers providing “companionship services” and (2) overtime pay requirements for live-in domestic workers.

Under current law, state minimum wage and overtime requirements apply only to those domestic workers who must be paid minimum wage and overtime under the federal Fair Labor Standards Act (FLSA). The FLSA does not require consumer employers to meet minimum wage or overtime pay requirements for domestic workers providing companionship services or overtime pay requirements for live-in domestic workers (see BACKGROUND).

3 — WORKERS' COMPENSATION

The bill changes the threshold used to determine whether an employer must provide a domestic worker with workers' compensation coverage. Under current law, the owner or occupier of a private dwelling who employs someone to provide service in or about the dwelling (i.e., a domestic worker) does not have to provide workers' compensation coverage for the worker unless he or she regularly works for at least 26 hours per week.

Under the bill, the owner or occupier does not have to provide workers' compensation coverage for the worker unless he or she paid the worker at least $1,000 in any calendar quarter in the current or preceding calendar year. The worker must be engaged in “domestic service,” which the bill defines as any service provided to the dwelling's owner or occupier for the dwelling's operation or maintenance but not service as an employee pursuing an employer's trade, occupation, profession, enterprise, or vocation. (This is the same wage threshold and a similar definition used to determine whether an employer and domestic worker are covered under the state's unemployment law.)

6 — “DOMESTIC WORKERS” AND THEIR “EMPLOYERS”

The bill has several provisions that apply only to certain domestic workers. Under the bill, these domestic workers are individuals or employees paid or told they will be paid to perform work of a domestic nature in or about a private dwelling. This work includes housekeeping; home management; child care; laundering; meal preparation; home companion services; caretaking of sick, convalescing, or elderly individuals; and other household services for the dwelling's occupants or their guests. They do not include (1) casual or intermittent babysitters or (2) PCAs providing home care to consumers in state-funded programs (“state-funded PCAs”), including the acquired brain injury Medicaid waiver program, personal care assistance Medicaid waiver program, Connecticut Home Care Program for the Elderly, pilot program to provide home care services to disabled persons, and Department of Developmental Services' individual and family support waiver program and comprehensive waiver program.

The domestic workers' ”employer” under the bill is any owner or person, partnership, corporation, LLC, or association of people acting directly as, on behalf of, or in an employer's interest in relation to a domestic worker (i.e., consumer employers and third-party employers who employ domestic workers to work in a consumer's home).

The provisions described below apply only to domestic workers and their employers who meet the above definitions.

7 — Paid Leave

The bill requires an employer to provide its domestic workers with paid leave after the workers complete one year of employment. Part-time workers (those who averaged less than 40 hours of work per week within the previous month) must receive 72 hours of paid leave annually. Full-time workers (those who averaged at least 40 hours of work per week within the previous month) must receive 120 hours of paid leave annually. (It is unclear how these requirements would apply to workers whose full-time status varies on a month-to-month basis, as the amount of annual leave to which they were entitled would also vary on a month-to-month basis.) Workers may take the leave consecutively or intermittently.

The paid leave must begin accruing on January 1, 2017, or the date the worker is hired, whichever is later. (Presumably, this means that workers begin fulfilling their requirement for one year of employment on that date.) Workers must be able to carry up to 56 unused hours of paid leave from the current calendar year to the next calendar year, but part-time workers are not entitled to use more than 72 hours per year and full-time workers are not entitled to use more than 120 hours per year.

Employers must pay for the leave at the worker's normal hourly wage rate during the pay period in which the worker uses paid leave. If a worker's hourly wage varies depending on the work performed, the worker must be paid the average hourly wage he or she was paid in the pay period prior to using paid leave.

The bill specifies that it must not be construed to (1) prevent an employer from providing more paid or unpaid leave than required by the bill; (2) diminish any rights provided to domestic workers under their employment terms; or (3) prevent an employer from complying with state or federal laws, rules, or regulations.

9 — Termination Notice and Severance Pay

Subject to certain exceptions, the bill requires employers to provide domestic workers who they have employed for at least 90 days with either advance written termination notice or severance pay. Regular domestic workers must receive the notice at least seven days in advance and live-in domestic workers at least 14 days in advance. Under the bill, “live-in” domestic workers are those who reside in an employer's home for at least four consecutive 24-hour periods during at least two consecutive weeks within one calendar year.

The bill requires employers who terminate such a worker immediately and without the required notice to pay the worker the amount that the worker would have earned if the employer had provided proper notice (i.e., seven days' pay for regular domestic workers and two weeks' pay for live-ins). The bill requires employers to provide this pay upon the worker's termination and specifies that it does not release the employer from any obligations to make payments under the state's unemployment law or any other applicable municipal, state, or federal law.

The bill allows an employer to immediately terminate a domestic worker without notice or severance pay due to the worker's willful misconduct in the course of his or her employment. Under the bill, “willful misconduct” is deliberate misconduct in willful disregard of the employer's interest, including any abuse, assault, or other harmful or destructive conduct committed against the employer, or the employer's possessions, family members, guests, or other people living in or about the employer's home.

2 — Employer Notice Requirements

The bill requires domestic workers' employers to advise them in writing at the time of hire about:

1. their pay rate, work hours, and pay schedules (this is already required by existing law);

2. their job duties and responsibilities;

3. the availability of sick leave, days off, vacation, personal days, and holidays, whether these days are paid or unpaid, and the rate at which they accrue;

4. necessary or required transportation modes and whether they are provided, paid, or reimbursed;

5. the availability of health insurance and whether it is paid or reimbursed;

6. any applicable severance pay, yearly raises, or other types of compensation;

7. whether the employer may charge for room and board; and

8. any other rights provided by the bill on paid leave, termination notice and severance pay, notice requirements, six-day workweek limits, privacy, retaliation protections, and DOL enforcement of the bill.

4 — CHRO Employment Discrimination & Harassment

Current employment-related anti-discrimination and harassment laws administered by the Commission on Human Rights and Opportunities (CHRO) cover all domestic workers who work for employers with at least three employees. The bill extends this coverage to domestic workers as defined above, regardless of how many employees their employers employ. (This excludes state-funded PCAs and casual babysitters from the CHRO protections.)

Among other things, this provides the covered domestic workers with:

1. protections against employment-related discrimination based on their race, color, religion, age, sex, gender identity, sexual orientation, marital status, national origin, ancestry, or mental or physical disability;

2. certain pregnancy-related protections, including a right to a reasonable leave of absence for a disability resulting from a pregnancy; and

3. protections against sexual harassment.

By law, employees covered under the CHRO statutes can enforce their rights by filing a complaint with the commission.

5 — Six-Day Workweek Limit

The bill prohibits employers from requiring domestic workers to work for more than six days in a calendar week. A worker's refusal to work more than six days cannot be grounds for his or her dismissal. By law, employers similarly cannot require employees in commercial occupations or industrial processes to work for more than six days in any calendar week.

The bill allows domestic workers to work seven days in a calendar week if (1) the workers and their employers agree in writing and (2) the workers are paid one-and-a-half times their average hourly salary for the hours they work on the seventh day.

8 — Privacy

The bill prohibits employers from (1) restricting or interfering with a domestic worker's private communications; (2) seizing, searching, or inspecting a domestic worker's personal belongings; or (3) engaging in any conduct against a domestic worker that violates any state law.

It also generally prohibits employers from monitoring a domestic worker's activities or communications by any means other than direct observation, including using a computer, telephone, wire, radio, camera, electromagnetic, photoelectronic, or photo-optical systems, without the worker's informed and voluntary consent. However, the bill allows an employer to use these devices without the worker's consent to monitor a worker performing care-giving tasks, including babysitting; child care; and caretaking of sick, convalescing, or elderly people.

Live-ins. The bill generally prohibits employers from entering a live-in domestic worker's designated living area in or about the employer's home without the worker's informed and voluntary consent. However, employers may enter if emergency repairs are required and (1) securing the worker's consent within a reasonable time is not feasible and (2) the employer notifies the live-in worker within a reasonable time after entering the worker's living area.

Cleaning Products. The bill gives domestic workers who must use cleaning products as part of their employment the right to (1) alert their employers about the health hazards and allergies that they believe are related to the cleaning products; (2) negotiate over substituting alternative cleaning products; and (3) substitute cleaning products they believe are less harmful, unless the employer can demonstrate the medical necessity for using a particular cleaning product.

10 — Retaliation Protections

The bill prohibits employers from discharging, disciplining, penalizing, retaliating against, or in any manner discriminating against a domestic worker because the worker (1) complained to the employer, the worker's authorized representative, or anyone else; (2) filed a complaint with DOL, as allowed under the bill, or started a proceeding under any other state law; (3) testified or will testify in any such proceeding; or (4) exercised any right provided by the bill on paid leave, termination notice and severance pay, notice requirements, six-day workweek limits, privacy, retaliation protections, and DOL's enforcement of the bill.

11 — Enforcement

The bill allows domestic workers to file a complaint with the labor commissioner alleging a violation of the bill on paid leave, termination notice and severance pay, notice requirements, six-day workweek limits, privacy, and retaliation protections. Upon receiving the complaint, the commissioner must investigate and may hold a hearing. After the hearing, he must send the parties a written copy of his decision. A domestic worker who prevails in a hearing must be awarded reasonable attorney's fees and costs.

If the commissioner finds that a domestic worker was aggrieved by the violations, he must (1) fine the employer up to $500 for the first violation and $1,000 for each subsequent violation and (2) award the worker all appropriate relief including rehiring or reinstatement to the worker's previous job, payment of back wages with interest, compensation for denied leave days, reestablishment of employee benefits, or any other remedies he deems appropriate. The commissioner can ask the attorney general to bring an action in Superior Court to recover these penalties. Any party aggrieved by the commissioner's decision can appeal to the Superior Court.

(Because the bill's privacy provisions prohibit employers from engaging in any conduct against a domestic worker who violates any state law, it appears that the bill requires the labor commissioner to investigate and enforce violations of any state law against a domestic worker. It is unclear how this power would interact or overlap with other investigations and enforcement powers provided under individual laws.)

The bill specifies that it does not prohibit a domestic worker from filing a civil suit against an employer to recover all appropriate relief, including the types specified above.

The bill also makes a third party that arranges for a domestic worker's employment or contracting (e.g., home care registries that refer domestic workers for employment by consumer employers) jointly and severally liable for any violations of the bill's provisions on paid leave, termination notice and severance pay, notice requirements, six-day workweek limits, privacy, and retaliation protections.

12 — DOMESTIC WORKER OUTREACH & EDUCATION

The bill allows the labor commissioner, subject to available appropriations, to appoint a domestic work outreach coordinator to develop and implement a multilingual outreach and education program for domestic workers and their employers. The program must provide them with information about domestic workers' rights in the state, model employment agreements, and educational material for employers that details their responsibilities to domestic workers.

The bill also allows the commissioner, subject to available appropriations, to establish an interagency program coordinating committee with members that may include the domestic work outreach coordinator, representatives from various employment agencies within DOL (it is unclear what agencies these are), and a representative from the Permanent Commission on the Status of Women. The committee must coordinate the available public resources needed to implement the bill's outreach and education provisions.

Lastly, the bill allows the labor commissioner to contract with community-based organizations and legal services organizations to:

1. disseminate information to domestic workers or other types of employees about the (a) protections provided in the bill's provisions on paid leave, termination notice and severance pay, notice requirements, six-day workweek limits, privacy, retaliation protections, and DOL enforcement and (b) process through which workers and employees can file complaints or purse other legal actions and

2. investigate, prepare, and if necessary, represent domestic workers and other employees in filing complaints under the bill's enforcement provisions or any other relevant state law.

BACKGROUND

FLSA “Companionship Services”

Under the FLSA, “companionship services” are those providing fellowship and protection to an elderly person or a person with an illness, injury, or disability who requires assistance in caring for himself or herself. It does not include providing assistance with activities of daily living for more than 20% of the total hours worked per week, general domestic services performed primarily for the benefit of other household members, or medically related services typically performed by trained personnel.

Related Bills

SB 210 (File 55), reported favorably by the Labor and Public Employees Committee, requires the state to provide workers' compensation coverage for state-funded PCAs regardless of how many hours they work in a consumer's home.

HB 5368, reported favorably by the Labor and Public Employees Committee, designates homemaker-companion agencies, registries, and homemaker-home health aide agencies as the employers of the individuals they provide for homemaker, companion, and homemaker-home health aide services, making the agencies and registries responsible for meeting an employer's obligations under specified laws (e.g., paying unemployment taxes, meeting minimum and overtime wage requirements, and obtaining workers' compensation insurance). It also requires the agencies and registries to provide workers' compensation coverage to their employees under the bill, regardless of how many hours they work in someone's home.

sHB 5586, reported favorably by the Human Services Committee, requires the social services commissioner to procure workers' compensation coverage for PCAs employed directly by a consumer in a Community First Choice program (i.e., state-funded PCAs).

COMMITTEE ACTION

Labor and Public Employees Committee

Joint Favorable

Yea

8

Nay

5

(03/10/2016)