May 16, 2016

Illinois Senate unanimously passes Domestic Workers Bill of Rights Act: This law may directly impact you!

On May 11, 2016, the Illinois Senate unanimously approved the Illinois Domestic Workers Bill of Rights Act. With all the press regarding transgender use of restrooms and the rule changes to the overtime salary threshold, the Domestic Workers Bill of Rights Act (Act) has largely flown under the radar. And yet, if signed into law by Illinois Governor Bruce Rauner, it will mandate tremendous change that will affect many families in Illinois. According to the Act, domestic workers need protection because they are “isolated” and “vulnerable” in their work places. This legislation imposes new record keeping and pay obligations and extends state wage and working protections to Illinois domestic workers who until now were excluded from the protections of the Illinois Human Rights Act, the Illinois Minimum Wage Law, the Wages of Women and Minors Act and the One Day Rest in Seven Act. The Domestic Workers Bill of Rights Act amends these Illinois statutes to include domestic workers and will be regulated by the Illinois Department of Labor. If enacted as written, it will become effective immediately.

If you employ a domestic worker – caring for your home, your children, your elderly parents – you should consider carefully the new Act and take measures to ensure that your employment arrangement will satisfy its requirements. If signed into law, there are strong enforcement measures and statutory penalties of up to $3,000 per violation. Further, attorneys will be incentivized to bring these actions individually or on behalf of a group of domestic workers because the legislature provided for a private right of action and the ability to recover costs and attorneys’ fees

Who will be protected?

Domestic workers are those who provide housekeeping, house cleaning, home management, cooking, chauffeuring, nanny services, including childcare, caretaking for the sick, convalescing, elderly and disabled and other household services in a domestic/home setting.

Will you be an employer?

You will be an employer under the Act, subject to many new obligations – including record keeping, offering paid leave and paying overtime – if you retain a domestic worker (explained above) to provide more than eight hours of domestic services in a week. This hour limit is designed to exclude the occasional babysitter and once-a-week housekeeping service. However, if, for instance, you employ a college student as a summer helper or during the school year for more than eight hours a week, you would now be considered an employer and mandated to follow the requirements of this new law.

What will employers be required to provide?

As the employer of a domestic worker, you will be statutorily obligated to give notice, keep records (for five years), provide meal and rest beaks, pay minimum wage, pay overtime wages should the domestic worker provide more than 40 hours of domestic services to you in a week, pay if you unexpectedly cancel the need for domestic services, give paid time off, and provide a discrimination/harassment-free workplace.

What are the notice requirements?

When making an offer to employ a domestic worker, the employer has to give a notice, which can be verbal, that discloses the following:

(1) The starting date, time and place of employment;

(2) The wage rates to be paid;

(3) The frequency of the payment of wages;

(4) The kinds of domestic work for which the domestic worker may be employed;

(5) The hours per day, days per week and period of employment, including any meal breaks and rest periods;

(6) Leave policies for both paid and unpaid time off for the domestic worker;

(7) Notice and policies for involuntary time off for the domestic worker (like when the employer goes on vacation);

(8) The transportation and any other employee benefit to be provided, if any, and any costs to be charged for each of them;

(9) Any other terms and conditions of employment, including any workplace hazards that may make the domestic worker vulnerable to illnesses and other physical problems and notice of termination and severance policies; and

(10) Whether the domestic worker is covered under the Workers’ Compensation Act, Unemployment Insurance Act and Illinois and federal employment tax laws.[1]

The employer also must provide a written contract

If the domestic worker works for more than eight hours in any workweek and that employment is expected to recur regularly – such as every week or periodically, such as once every six weeks – the employer must provide a written contract. The contract[2] must include:

(1) The rate of pay, including overtime and additional compensation for added duties and multilingual skills;

(2)  Working hours, including meal breaks and other time off, including, when applicable, the provisions for a day of rest, paid time off, holidays, severance, raises, transportation costs, health insurance and any fees or other costs including costs for meals and lodging;

(3) Living accommodations provided by the employer and policies on vacating the premises;

(4) The responsibilities associated with the job;

(5) The process for raising and addressing additional compensation if new duties are added and the process for addressing grievances;

(6) The right to privacy;

(7) The right to collect workers’ compensation if injured, unemployment insurance benefits and social security benefits;

(8) Notice of termination and severance pay polices;

(9) The contract period;

(10) Reimbursement for work-related expenses; and

(11) Any other rights or benefits afforded to the domestic worker, including state and federal employment taxes paid or to be paid by the employer related to the domestic workers’ employment and notice of employment rights in state law.

Domestic workers are entitled to minimum wage and overtime pay

The minimum wage in Chicago is $10.50/hour, effective on July 1, 2016. Illinois’ minimum wage is $8.25/hour. Overtime is paid at a rate of one-and-a-half times the regular rate of pay for all hours worked in excess of 40 in a workweek. Domestic workers, under the Act, will be entitled to receive minimum wages and overtime pay for each hour worked in excess of 40 in a workweek.

What about paid time off?

Employers typically make a business decision whether to provide paid time off. This Act mandates the awarding of paid time off to domestic workers. This mandatory benefit will accrue at the rate of one hour of paid time off for every 30 hours of working time, but is capped at a maximum of 80 hours of paid time off. Under the Act, the paid time off may be used as it is accrued or loaned – at the employer’s discretion – in advance of its accrual. However, if loaned, the employer may not require the domestic worker to reimburse it for any unearned paid time off.

The Act provides that the leave can be taken in hourly increments when and for whatever reason the domestic worker chooses, but the domestic worker is supposed to give not less than three days advance notice if the need for leave is foreseeable.

The employer may not require the domestic worker to search for or find a replacement worker to cover the hours during which the domestic worker is on paid time off leave.

There was nothing in the Senate bill regarding payment of accrued but untaken paid time off at termination, but it is likely that the employer would be required to pay for that untaken time at the next pay period after the separation, as provided by the Illinois Wage Payment and Collection Act.

What about lunch and paid rest breaks?

Tying the Domestic Workers Bill of Rights Act to the One Day Rest in Seven Act, the legislature mandated that employers give domestic workers one day off in seven and breaks based on the number of hours scheduled each day. If a domestic worker is scheduled to work more than five hours per day, the employer must give the domestic worker a meal break for not less than 30 minutes. If a domestic worker is scheduled to work more than 10 hours per day, the employer must provide the Domestic Worker with a second meal break, again for not less than 30 minutes. The domestic worker must be completely relieved of all duties during the meal break to be unpaid. If the nature of the domestic services prevents the domestic worker from being fully relieved of all duty, lunch breaks will be considered “on-duty” and will count as hours worked, which means they must be paid. If an employer fails to provide the meal period, the employer will owe the domestic worker one additional hour of pay for each work day that the meal period was not provided.

An employer also is required to permit the domestic worker to take rest periods – insofar as practical – in the middle of the work period. They shall be based on the total hours worked, but shall be at the rate of 10 minutes per every 4 hours and are to be paid.

There also are special statutory requirements for live-in or 24 hour domestic workers.

What about involuntary time off?

Under the Act, a domestic worker shall be paid for half the usual or scheduled day’s work, but not less than two hours nor more than four hours, if the domestic worker were scheduled to work and available to work, but not worked or was furnished less than half his or her usual or scheduled day’s work

If an employer foresees not needing domestic services on a temporary basis, such as when the employer goes on vacation, the employer is required to give the domestic worker at least 21 days’ notice. If the time off is not foreseeable, the employer must give notice as soon as practicable. If notice is not provided, the employer will be required to pay for the usual day’s work and not less than two hours a day for each subsequent day or hours of involuntary time off.

Domestic workers entitled to privacy

Employer may not videotape or otherwise record domestic workers in any of the bathrooms or where the domestic workers are sleeping. If the domestic worker lives in, the domestic worker’s living areas also may not be videotaped or recorded.

Domestic workers protected from discrimination and harassment

The Act amends the Illinois Human Rights Act to include protections for domestic workers. Although the Illinois Human Rights Act excludes employers of less than 15 people, except for complaints of sexual harassment and disability discrimination, this Act will extend the Illinois Human Rights Act to employers of even one domestic worker. The Illinois Human Rights Act precludes discrimination in hiring, firing and terms of employment based on enumerated categories, including age, race, gender, national origin, disability, religion and gender identification. Employers – in their own home – need to take care to ensure that their conduct and behavior does not rise to the level of harassment or discrimination based on any protected category.

Employers must keep records

Employers must make and preserve records that document the name and address of each domestic worker, the hours they worked, the rate of pay, the amount paid each pay period, any deductions made from the wages or final compensation, the number of paid time off hours earned each year and the dates on which paid time off hours were taken and paid. The employer must also preserve the written contract. These records must be kept for a period of five years.

Employers may not retaliate

An employer violates the Act if they discharge, threaten, penalize, discriminate, retaliate or take any adverse action against a domestic worker who exercises or asserts his or her rights under the Act. No employer may require a domestic worker to waive his or her rights under the Act.

Domestic workers given a private right of action

Domestic workers may complain to the Department of Labor or file a civil action for violations of the Act. This Act will be attractive to the attorneys representing employees because attorneys’ fees are recoverable and because group actions may be prosecuted. The statute of limitations is five years from the date of the last event constituting the alleged violation. The domestic worker may recover actual damages, compensatory damages for emotional distress and equitable relief. Statutory penalties also are available, not to exceed $3,000 for each separate offense.

The bottom line

If this Act passes through the House and is signed into law by Governor Rauner, there are many new requirements imposed on employers of domestic workers. If you have questions about this legislation or your rights or obligations under it, please contact one of the Employment Law attorneys at Chuhak & Tecson, P.C.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: Jeralyn H. Baran, Principal

[1] From Section 15 of the Senate Bill.(SB 1708), introduced on 2/15/13, by Sen. Ira I. Silverstein, William Delgado and Kimberly Lightford

[2] From Section 15 of the Senate Bill