New York Domestic Workers
In New York, domestic workers include those who work in another person’s home caring for children or an elderly person, cooking, keeping house, or doing other domestic jobs in the home such as gardening or repairs.
Domestic workers do not include those who work on a casual basis, such as a part-time baby-sitter or those who do occasional yard-work. Domestic workers also do not include those who are related to their employers or the person for whom they care. If you are a companion for an elderly person and do not perform other domestic work, you are not considered a domestic worker.
New York domestic workers have protections under a variety of federal, New York state, and New York City laws. These laws guarantee minimum wage and overtime, protect workers from discrimination and retaliation, provide paid rest time and sick leave, and grant other legal protections. Contact a New York employment lawyer to protect your rights.
Know Your Rights
In New York State, the Domestic Workers’ Bill of Rights creates a number of protections for domestic workers, including the right to overtime pay, a weekly day of rest, three paid days of rest each year, protection under of the New York State Human Rights Law, and a special cause of action for domestic workers who suffer sexual or racial harassment.
The Domestic Workers’ Bill of Rights applies only to those workers who were employed directly by a family.
In addition to compensation protections, domestic workers have protections against discrimination and retaliation.
These rights apply to all New York domestic workers regardless of immigration status, even to those who are undocumented.
Immigration status does not change the legal rights of a domestic worker. All workers have the right to file a claim for unpaid wages, overtime, or workplace discrimination.
It is also illegal for employers to seize your passport or any other identifying documents.
Minimum Wage Protections for New York Domestic Workers
Domestic workers must earn the minimum wage for all hours worked. While the federal minimum wage is $7.25 an hour, the minimum wage in New York state is $10.40 for 2018.
In New York City, the minimum wage depends on the size of the employer. For domestic workers employed directly by a family or through an agency with ten or fewer employees must pay, the minimum wage is $12.00 per hour. Workers employed by an agency minimum wage with eleven or more employees, must receive $13.00 an hour. Domestic workers outside of the City in Westchester County or Long Island have a lower minimum wage.
These numbers are set to increase every year for New York state. For more, visit the New York minimum wage page.
Domestic workers must make at least the highest minimum wage for their area. For example, NYC domestic workers must make at least $12.00 an hour. Being paid less than minimum wage is a form of wage theft.
Meal and Lodging Credit
Employers who give domestic workers meals and/or a place to live may be able to get a specific credit toward the minimum wage they pay the worker. New York state lists maximum meal and lodging credits, which depend on the size of the employer and where in the state you work.
Domestic workers must be paid weekly, and not later than seven calendar days after the end of the week in which the wages were earned.
Deductions from Wages
Employers may not make any deductions from your paycheck. The only exception is when the deduction is allowed by law for your benefit such as Social Security taxes and income taxes, Medicare, health insurance and automatic savings plans. Any other deductions must be for your benefit, cannot exceed 10% of your gross wages in a given pay period, and cannot be taken without your written permission.
Your employer is not allowed to take deductions from your wages for:
- Spoilage or breakage
- Fines or penalties for lateness, misconduct or quitting without notice
Domestic workers in New York City who earn the minimum wage and whose hours add up to more than ten hours in a day—for example, from 9am to 8pm—have a right to receive an extra hour’s pay at the minimum wage rate. The calculation of the number of hours includes meal and rest breaks and time between shifts. If you make more than minimum wage, you may not be eligible for spread-of-hours pay.
Domestic workers must be paid for all hours they work.
If the employer requires a domestic worker to be “on call” and available to work during times in addition to regular duty hours, the worker is entitled to be paid for all hours when he or she is not allowed to leave the premises and use the on-call time for personal purposes. As long as the employer is in control of the time, the worker is “on the clock” and must be paid for that time.
Similarly, if the employer requires the worker to begin work before their shift starts or work past the end of their shift, the domestic worker must be paid for that additional time.
If you leave your job, either voluntarily or involuntarily, you are entitled to be paid no later than the next regularly scheduled payday. Your employer can mail you your last check, but that must be at your request, and the employer must put the check in the mail early enough that you receive it on or before your next payday.
Written Notice and Wage Statements
Your employer, even it is a household, is obligated to keep detailed weekly payroll and time records of the hours you worked, the wages you earned and any deductions taken.
New York Domestic Worker Overtime Protections
In New York, domestic workers can receive overtime pay. The overtime rules vary based on whether you live in your workplace or not.
Domestic workers who do not live in their workplace are entitled to be paid one and a half times their regular hourly rate for all hours worked over 40 in a week.
Domestic workers who are live-in workers must receive one and a half times their regular hourly rate of they work more than 44 hours in a week. The law defines a live-in worker as one who lives in the private home of the person receiving services, either on a permanent basis or for “extended periods of time” (typically working and sleeping there five days a week).
Overtime hours are calculated on a weekly basis, i.e. for a consecutive seven-day work period, even if pay periods are two weeks or longer. Employers cannot average hours worked in multiple weeks to avoid paying overtime. For example, if you work 30 hours one week and 50 hours the next week, your employer cannot say you worked an average of only 40 hours to avoid paying you overtime. Your employer must pay you 10 hours at the overtime rate for the week you worked 50 hours.
Live-in domestic workers must be paid for the full period of time on duty, including sleep and meal periods, unless the worker and employer agree to exclude time for sleeping.
Employers can deduct no more than eight hours of sleep time for each night. However, all three of the following requirements must be met:
- There is a written agreement between the employee and the employer that sleep time will not be paid.
- The worker receives adequate sleeping accommodations.
- The worker can get a full night’s sleep, without being interrupted by the employer.
If the worker’s sleep is interrupted by a call to work, the time interrupted counts as hours worked. If the worker cannot get at least five hours of sleep during the scheduled off-duty period, she must be paid for the entire night.
Paid Time Off and Sick Leave
New York’s Domestic Workers’ Bill of Rights provides workers with at least one 24-hour period of rest per week. If you agree to work on that seventh day, you must receive overtime pay for any hours you work.
The law also requires that you receive at least 3 paid days off per year after one year of working for the same employer.
Employees can negotiate more paid time off directly with their employers.
Domestic workers in New York City are entitled to 2 paid days of sick leave under the New York City Earned Safe and Sick Time Act (ESTA) after working for the same employer for a year. If you do not use your paid sick days, they will “carry over” into the next year. So, if you did not use your 2 days of sick leave last year, you will have 4 days of paid sick leave this year.
Domestic workers also may use their 3 paid “days of rest” if they need additional days of sick leave.
A recent amendment to the New York City Earned Safe and Sick Time Act allows domestic workers to use their 2 paid days of sick leave to deal with any circumstances resulting from the worker or a covered family member being the victim of domestic violence, sexual offenses, stalking, or human trafficking. For example, the time could be used to file a police report, make arrangements with a domestic violence shelter, or meet with the District Attorney.
New York Domestic Workers Uniforms
In New York state, employers must pay for uniforms.
If you are required to wear a uniform that cannot be worn as part of your ordinary wardrobe, your employer must pay for the uniform or reimburse you for the cost no later than your next regularly scheduled paycheck.
In addition, your employer must pay for the laundering and maintenance of that uniform. If you launder it yourself, your employer must pay you a weekly amount to cover the cost, which is based on the number of hours you work.
However, employers do not have to pay laundering costs if the uniform is “wash and wear,” meaning it can be routinely washed with other clothing and does not have any special cleaning or ironing requirements.
Discrimination and Sexual Harassment Protections for New York Domestic Workers
Domestic workers have legal protections against discrimination and sexual harassment.
The New York state Domestic Workers’ Bill of Rights extends the state’s Human Rights Law to all domestic workers, regardless of the number of employees. These laws even protect workers who are the only employee in the household.
Sexual harassment violates the laws protecting domestic workers. Sexual harassment includes unwelcome sexual advances, verbal or physical conduct of a sexual nature, or requests for sexual favors.
Harassment because of your sex, race, color, national origin, religion, age, or disability status violates the law. Your employer, supervisor, or coworker cannot harass you because you are a member of a protected group. Creating a hostile, intimidating, or threatening work environment is against the law.
New York law protects domestic workers from sexual harassment and harassment based on your protected status. However, protections against discrimination in hiring and firing only apply if your employer has four or more employees.
If you were hired through an agency with more than 4 employees, your employer cannot fire, refuse to hire, or withhold benefits based on your race, religion, sex, age, national origin, or any other protected reason.
It is against the law for your employer to retaliate against you if you stand up for your legal rights. This includes complaining to your employer about wrongful pay, filing a claim against your employer, or participating in an investigation as a witness.
Retaliation can include firing or suspending an employee, a reduction in hours or pay, threats of deportation, or forcing an employee to reverify their employment authorization.
It is illegal for employers to retaliate against undocumented workers by threatening to contact the police or ICE. Undocumented workers may qualify for immigration relief as a result of employer retaliation.
Domestic workers who have been the victims of retaliation may be able to recover their jobs or any lost wages and benefits by filing a retaliation complaint.
Filing a Complaint
New York domestic workers have legal protections. If your employer has withheld wages or refused to pay overtime, you can file a claim with the U.S. Department of Labor’s Wage and Hour Division or the New York Department of Labor’s Division of Labor Standards. These departments can investigate and order back wages from your employer. They can also file a lawsuit on your behalf for back pay and damages.
If you have faced discrimination or sexual harassed, you can file a complaint with the Equal Employment Opportunity Commission (EEOC), the New York State Division of Human Rights, or the New York City Human Rights Commission.
If your rights have been violated, you can also file a lawsuit in court. Reach out for a free consultation with a New York employment lawyer.