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The law is changing rapidly for Massachusetts households employing domestic workers. On April 1, 2015, the Massachusetts Attorney General (AG) issued a press release and posted on her website a draft regulation purporting to "interpret, enforce, and effectuate" the purposes of the Domestic Workers Bill of Rights Act "as codified at M.G.L. c. 149, § 190."¹

The AG also posted five templates intended for use with domestic workers. They include a model employment agreement, a model evaluation form, an explanation of relevant federal and state laws to be provided by employers to domestic workers, a sample time sheet to be maintained by employers, and a sample record of other types of information to be maintained by employers for any domestic worker working sixteen or more hours per week.

The AG's actions are part of a significant change in Massachusetts employment law, one that so far has received relatively little publicity. The statute underlying the draft regulation is in effect already.² A public hearing on the draft regulation will take place on May 8, 2015. The deadline for submitting written comment on the draft is May 15, 2015.

And for reasons explained below, anyone who "hires, pays, or permits" someone else to provide domestic services in a Massachusetts household should review the draft regulation and consider providing the AG with appropriate comment before the draft acquires the force and effect of law.

1. The draft regulation defines "domestic worker" more expansively than the statute on which it purports to be based, and it thus proposes "employer" obligations for a much larger number of individuals, families, and households.

The AG's small business impact statement says that this regulation is mandated by M.G.L. c. 149, § 190. But a word-for-word comparison between the statute and the draft suggests otherwise.

In both legal documents, the definitions of "employer" and "domestic worker" are controlling. And on the meaning of "employer," the legal documents agree. An "employer" is a person or entity (other than a staffing agency, employment agency, placement agency, or person to whom a MassHealth personal care attendant provides services) who "suffers or permits" a "domestic worker" to work within a household.³

But the statute and the draft regulation do not share a single definition of "domestic worker." The statute says that a "domestic worker" is someone who

is paid by an employer to perform work of a domestic nature within a household including, but not limited to [nine specific types of domestic work]; provided, however, that "domestic worker'' shall not include a personal care attendant or an individual whose vocation is not childcare or an individual whose services for the employer primarily consist of childcare on a casual, intermittent and irregular basis for 1 or more family or household members.₄

In other words, an individual is a "domestic worker" within the terms of the statute only if his or her vocation is childcare and his or her services for the employer do not "primarily consist of childcare on a casual, intermittent and irregular basis for 1 or more family or household members."

Or to state this key point conversely, an individual "whose vocation is not childcare" cannot be a "domestic worker" within the meaning of the statute under any circumstances, without regard to the amount of housekeeping, house cleaning, home managing, nanny services, caretaking, laundering, cooking, home companionship, or other domestic services he or she provides.

The AG's draft regulation, however, ignores most of the statutory limitation. According to the more expansive definition in the draft regulation, a "domestic worker" is anyone in Massachusetts who

receives compensation from an employer to provide any service of a domestic nature within a household, except: (i) any individual who provides services to persons with disabilities or seniors under the MassHealth personal care attendant program or any successor program under M.G.L. c. 118E, §§ 70-75; (ii) any individual who provides childcare services but whose vocation is not childcare; and (iii) any individual whose services primarily consist of childcare on a casual, intermittent and irregular basis for one or more family or household members.⁵

Thus, by strategically adding the five words italicized in the above quotation, the draft regulation stands the statute on its head. The results are a major reduction in the number of workers "excepted" from the "domestic worker" definition, and a corresponding increase in the number of individuals, families, and households who will stand to be regulated by the Commonwealth as "employers."

2. The draft regulation, like the statute, imposes a litany of obligations on anyone classified as an "employer" of a "domestic worker."

Individuals, families, and households classified by the draft regulation as "employers" are facing an abrupt transition. Many will be unaccustomed to the degree of government control that will result. And if they decide to continue as "employers," they almost certainly are going to have to devote more time, money, and attention to the finer details of their relationships with the workers in their homes. As the AG's notice of publication and hearing states, the regulation being proposed is intended not only to clarify the rights of the workers and the related obligations of their employers, but also to outline the AG's authority to investigate violations.

According to the draft regulation, an "employer's obligations to a "domestic worker" will include the following:⁶

• Providing written performance evaluations, when requested; 
• Keeping a record of wages and hours for three years; 
• Providing anyone employed for 16 or more hours per week detailed information about pay rates; working hours; meal and lodging costs; job responsibilities including any "regularity, associated with the job"; grievance processes; workers' compensation benefits eligibility; times when the employer may enter the worker's designated living area in the household; "cause for purposes of termination"; "the required notice of employment termination by the employer"; and additional job benefits; 
• Retaining a record of the above information for three years; 
• Providing anyone employed for 16 or more hours per week with a time sheet, at least once every two weeks, that the worker must sign and return to acknowledge agreement; 
• Maintaining those time sheets for three years; 
• Providing each worker with "a notice that contains all applicable Massachusetts and federal laws that apply to the employment of domestic workers"; 
• Providing any worker residing in the household who is being terminated without cause with (a) written notice and 30 days of lodging, or (b) written notice and two weeks of severance pay; 
• Providing advance written notice, if practicable, and a reasonable opportunity to find lodging of no less than 24 hours, to any worker residing in the household being terminated for cause that does not include "abus[ing], neglect[ing] or caus[ing] any other harmful conduct against the employer, members of the employer's family or individuals residing in the employer's household";⁷ 
• Providing 24-hour rest periods every week, and 48-hour rest periods every month, to anyone working 40 or more hours per week; 
• Scheduling rest periods to accommodate the worker's religious worship; 
• Treating rest periods, whether paid or unpaid, as job-protected leave in addition to job-protected leave under the Earned Sick Time Law or Parental Leave Act; 
• Allowing work during a rest period only when there is voluntary, written agreement; 
• Paying overtime whenever more than 40 hours per week is worked; 
• Paying for meal, rest, and sleep periods when the worker is required to be on duty for 24 consecutive hours, unless a voluntary, written agreement provides otherwise; 
• Not deducting from pay amounts for food, beverages, or lodging that are not agreed to in writing; 
• Not monitoring or recording the use of restroom or bathing facilities, sleeping or private living quarters, or activities associated with dressing, undressing or changing clothes; 
• Not restricting private communications unreasonably; 
• Providing a worker living in residence with free access to the employer's available telephone or internet service; and 
• Providing to the AG, upon demand, all required records relating to domestic workers.

Further, the expanded definition of "domestic worker" in the AG's proposed regulation may end up affecting "employer" obligations and liabilities in ways that the AG does not mention. The definitions of "employer" and "domestic worker" in M.G.L. c. 149, § 190 are supposed to apply as well in § 191,⁸ and § 191, too, makes a significant legal change. It provides that it will be an unlawful discriminatory practice for an "employer" to:

(i) engage in unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature to a domestic worker if submission to the conduct is made either explicitly or implicitly a term or condition of the domestic worker's employment, if submission to or rejection of the conduct by a domestic worker is used as the basis for employment decisions affecting the domestic worker or if the conduct has the purpose or effect of unreasonably interfering with a domestic worker's work performance by creating an intimidating, hostile or offensive working environment; (ii) subject a domestic worker to unwelcome harassment based on sex, sexual orientation, gender identity, race, color, age, religion, national origin or disability if the harassment has the purpose or effect of unreasonably interfering with a domestic worker's work performance by creating an intimidating, hostile or offensive working environment; or (iii) refuse job-protected leave for the birth or adoption of a child by the domestic worker or a spouse under section 105D.⁹

3. Either the AG or a "domestic worker" can enforce the litany of "employer" obligations set forth in the draft regulation, and the Massachusetts Commission Against Discrimination (MCAD) can enforce the related prohibition against unlawful discrimination.

The draft regulation provides that the AG can enforce an "employer's" obligations to a "domestic worker" by seeking injunctive or declaratory relief, issuing a warning or civil citation, and requiring that an infraction be rectified, restitution be made, and a civil penalty paid to the Commonwealth.¹⁰

Also, a "domestic worker" claiming to be aggrieved by an "employer's" violation of the regulation can bring a civil action, either in the worker's own name or for the worker and others similarly situated, to recover damages, including lost wages and benefits. And if the "domestic worker" prevails in the civil action, he or she "shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys' fees."¹¹

Finally, unlawful discrimination claims by "domestic workers" are enforceable by the MCAD.¹² Relief from the MCAD can include reinstatement to employment, payment of monetary damages, and award of attorneys' fees. And an employee who brings such a complaint to the MCAD also has the option of proceeding with the claim in court.

Conclusion

Much is at stake with the AG's draft regulation. The contemplated degree of governance is detailed and comprehensive. Interested parties should express any concerns now, before the draft becomes law.

¹ The draft regulation is 940 C.M.R. 32.00 (proposed).
² M.G.L. c. 149, § 190 became effective on April 1, 2015.
³ M.G.L. c. 149, § 190(a); 940 C.M.R. § 32.02 (proposed).
⁴ M.G.L. c. 149, § 190(a) (emphasis added). A "personal care attendant" is "an individual who provides personal care attendant services to persons with disabilities or seniors under the MassHealth personal care attendant program or any successor program." Id. 
⁵ 940 C.M.R. 32.02 (proposed) (emphasis added).
⁶ 940 C.M.R. §§ 32.03 - 32.04 (proposed).
⁷ 940 C.M.R. § 32.03(19) (proposed) provides as follows:

No advance notice or severance payment shall be required where the employer provides a good faith allegation, in writing before or at the time of the termination, with reasonable basis and belief and without reckless disregard or willful ignorance of the truth that the domestic worker has abused, neglected or caused any other harmful conduct against the employer, members of the employer's family or individuals residing in the employer's household.

⁸ M.G.L. c. 149, § 190(a) provides generally that the definitions of "employer" and "domestic worker" in § 190 will apply as well in § 191, "unless the context clearly requires otherwise." Both sections became effective on April 1, 2015.
⁹ M.G.L. c. 149, § 191.
¹⁰ 940 C.M.R. § 32.05(3) (proposed).
¹¹ 940 C.M.R. § 32.05(4) (proposed).
¹² See M.G.L. c. 149, § 191(c). In addition, there were two related changes in the Massachusetts Fair Employment Practices Act (FEPA) that became effective September 24, 2014. The FEPA's definition of "employer" now includes "an employer of domestic workers including those covered under section 190 of chapter 149," and its definition of "employee" no longer excludes workers "in domestic service." See M.G.L. c. 151B, §§ 1(5), 1(6).

This advisory was prepared by David C. Henderson, a member of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact David at 617.439.2345 or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.