New York Bill Requires Domestic Employees to be Treated like Actual Employees

New York is home to a huge number of wealthy working professionals. Many of these families and individuals have children. Of course, if you work 65-hour weeks at Big Fancy Law Firm™, you don’t really have much time to raise your kids. That’s where nannies come in.

More and more families consist of two working parents. There’s absolutely nothing wrong with this, and for many families, it’s an economic necessity. This means that many parents have to hire a nanny to take care of their children while they’re at work. These individuals operate as an unseen workforce and economy, where there is almost no regulation or workplace protection.

It looks like this is about to change in New York state, at least on paper. The State Senate just passed a law which explicitly requires that all domestic employees be given the same benefits that employers in any other industry are required to provide, under state law. This includes paying them the minimum wage, providing sick days, overtime pay, paid vacation, and 2 weeks’ notice before terminating employment (or, alternatively, termination pay).

The protections in this law, which the governor of New York is expected to sign, would apply regardless of an employee’s immigration status. If you’re at all concerned about the plight of domestic workers, this bill sounds pretty good, on its face.

Many bloggers, while generally grating the bill’s good intentions, point out some pretty serious practical problems. For example, most commentators don’t have a problem with the fact that the law will seek to protect workers who are not in the country legally. They ask, however, how such provisions will be enforced. For instance, it’s not clear how many nannies, especially illegal immigrants, will report violations of this law, for fear of retaliation (being reported to immigration authorities, for example). This fact might encourage people to hire illegal immigrants to work as nannies over people who are in the U.S. legally, since illegal immigrants will be so much less likely to report violations. Of course, it could also be argued that, by applying all the same workplace rules to illegal immigrants, there is no incentive to hire them instead of citizens or legal immigrants.

Furthermore, there are concerns that this might make life much more difficult for working families, while doing very little to help domestic employees.

Nobody is denying that these issues make enforcement of the law problematic, but some lawmakers opposed to the measure have taken the rhetoric a step further, resorting to outright falsehoods. One lawmaker argues that the 2-week-notice provision might deter parents from immediately firing a nanny who they suspect of child abuse. Leaving alone the fact that any sane parent would probably not care what the law says in a situation like this, the new law specifically addresses this possibility. The notice provision doesn’t apply in cases of suspected abuse. 

Also, perhaps to alleviate concerns that this law would destroy the market for casual domestic employees, like babysitters, this law only applies to people for whom working as a nanny is their primary source of income.

As mentioned earlier, these provisions are pretty reasonable on their face. There is no getting around the problem of enforcing them, however. Indeed, according to recent LegalMatch data, hardly any workers who have reported wage, hour, or overtime violations have been in the domestic service industry, with in-home healthcare workers being a limited exception. None of the people who reported wage and hour problems anywhere in the U.S., in the last 12 weeks, appeared to be domestic childcare workers.

There are a few possible explanations for this.

First of all, it’s possible that the bill’s detractors are correct: domestic workers simply don’t report illegal conduct by their employers, because they’re illegal immigrants afraid of being found out, or any number of other possible reasons (fear of retaliation is a big one, as a significant number of nannies report verbal and physical abuse by their employers). This could serve as an illustration that laws like this, no matter their intentions, are futile.

Of course, the law’s supporters could just as easily argue that these figures demonstrate the need for the protections this law will afford. After all, they might say, these “violations” aren’t being reported, because, legally, there’s nothing to report: these workers have almost none of the legal rights that other employees take for granted, so even if they are being exploited, there’s little the law can do for them.

Obviously, based on the limited data available, it’s impossible to say which side is correct.

A few things are certain.  First, we know that there’s a problem, especially in very large cities, as domestic workers are being exploited by their employers simply because it’s easy to do. We also know that some workplace protections, similar to those enjoyed by most other employees, are necessary for domestic workers. However, it also appears plainly obvious that there’s no perfect solution to this problem.

Perhaps this law will prove to be an important step in the right direction. However, changes like this cannot be made in a vacuum if we expect them to be successful. For example, immigration reform is necessary if the effects of this law are not to be negated by the fact that many illegal immigrants will not report violations. Obviously, I don’t know exactly what these changes would entail, but a general policy geared towards making it easier to enter the U.S. legally would be a very good start.

By: Rusty Shackleford

Comments

[Geoconmarketing]

My wife and I recently hired a nanny because we both work and have 2 boys in NYC. We decided to do the right thing and went to all the trouble and expense of setting her up properly as an employee. We setup a payroll service and have been paying all of our taxes etc through that service (or so we thought). This week we were blindsided by a fine from the NYS Workers Comp Board for $20,000!! No warning, no prior notice - nothing - just smacked with a fine that is many many times larger than what we pay our nanny. We're learning that it doesn't pay to be honest. While we're stuck with our decision - I really wish we'd taken advice from everyone who told us just to pay cash.