(1)
Rest Periods.
(a) An
employer who employs a domestic worker for 40 hours a week or more shall
provide a rest period of at least 24 consecutive hours in each calendar week
and a rest period of at least 48 consecutive hours during each calendar month.
The 24 consecutive hours of rest that must be provided per week may, at the
discretion of the employer, during one such week, run concurrently with the
minimum 48 consecutive hours that must be provided by an employer at least once
per calendar month.
(b) Where
possible, a rest period should accommodate religious worship, including the
domestic worker's attendance at a place of worship, if any.
(c) When a domestic worker is employed for 40
hours a week or more, the domestic worker and the employer may enter into a
written agreement where the domestic worker agrees to work during a previously
designated rest period. Such written agreement to work during a
previously-designated rest period shall:
1.
be in a language easily understood by the domestic worker;
2. be entered into prior to performance of
services during the previously designated rest period;
3. specify the rest period or periods which
the domestic worker agrees to work; and
4. be signed or acknowledged (whether in
writing or by means of electronic communication) by the domestic worker and the
employer.
(d) Rest
periods, whether paid or unpaid, shall be considered job-protected leave. Rest
periods shall be in addition to any job-protected leave to which a domestic
worker may have a right under the Family Medical Leave Act, 29 U.S.C. §
2601
et seq., the Parental Leave Act, M.G.L. c. 149, §
105D, the Domestic Violence Leave Act, M.G.L. c. 149, § 52E, the Small
Necessities Leave Act, M.G.L. c. 149, § 52D and 940 CMR 20.00:
Employee Leave for Certain Family Obligations, the Earned Sick
Time Law, M.G.L. c. 149, §§ 148C and 148D and 940 CMR 33.00:
Earned Sick Time.
(e) If an employer provides a paid rest
period, the rest period shall be considered vacation time and pay under M.G.L.
c. 149, § 148.
(f) When a
domestic worker who does not reside on the employer's premises is on duty for
less than 24 consecutive hours, the employer shall pay the domestic worker for
all such time as working time pursuant to
454 CMR 27.02:
Definitions.
(2)
Exclusions from Working
Time. When a domestic worker is required to be on duty for a
period of 24 consecutive hours or more, all meal periods, rest periods, and
sleep periods shall constitute working time, unless otherwise provided by
written agreement. The domestic worker and the employer may enter into a
written agreement to exclude meal periods, rest periods, and sleep periods from
working time. Such written agreement to exclude meal periods, rest periods, and
sleep periods from working time shall:
(a) be
in a language easily understood by the domestic worker;
(b) be entered into prior to performance of
services;
(c) specify the meal
periods, if any, which the domestic worker agrees are not working
time;
(d) specify rest periods, if
any, which the domestic worker agrees are not working time;
(e) specify sleep periods, if any, which the
domestic worker agrees are not working time; and
(f) be signed or acknowledged (whether in
writing or by means of electronic communication) by the domestic worker and the
employer.
(3)
Overtime. A domestic worker shall be compensated at
the overtime rate for all hours worked over 40 per week pursuant to M.G.L. c.
151, § 1A, regardless of whether all the hours worked were of a domestic
nature in the case of domestic workers who work for an employer in both
residential and commercial settings.
(4)
Banking of
Hours. No employer shall require banking of hours. A domestic
worker may voluntarily agree to banking of hours provided:
(a) the time to be made up is less than 24
hours; and
(b) the agreement is in
writing in a language easily understood by the domestic worker and is made
prior to the performance of the make-up work. If the employer and domestic
worker agree to banking of hours, and the time made up in a particular week
brings the worker's total hours over 40, then the employer shall ensure that
the domestic worker is compensated at the overtime rate pursuant to 940 CMR
32.03(3) and M.G.L. c. 151, § 1A, for all hours in excess of 40 that the
domestic worker works.
(5)
Deductions.
(a)
Agreements. No
deductions for food, beverages, or lodging shall be made from a domestic
worker's wages without the domestic worker's agreement, provided that such
agreement:
1. is in writing, in a language
easily understood by the domestic worker, and made prior to the time when
deductions are incurred;
2.
specifies the particular deductions to which the domestic worker agrees to
consent; and
3. is signed or
acknowledged (whether in writing or by means of electronic communication) by
the domestic worker and the employer.
(b)
Food and
Beverages.
1. An employer may
deduct from a domestic worker's wages an amount for food and beverages actually
provided to the domestic worker, provided that:
a. the food and beverages are voluntarily and
freely chosen by the domestic worker;
b. the domestic worker can easily bring and
prepare meals on the premises; and
c. working conditions caused by the
employer's or another household member's dietary restrictions or other related
preferences do not prevent a domestic worker from storing, preparing, or
consuming meals of his or her preference.
2. No employer shall deduct from the wage of
a domestic worker a sum in excess of the amounts per day set forth for food and
beverages actually furnished to the domestic worker, as prescribed by
454 CMR
27.05(3):
Deductions
for Meals and promulgated pursuant to M.G.L. c. 151, said maximum
daily deductions as of January 16, 2015, being $1.25 for breakfast, $2.25 for
lunch and $2.25 for dinner.
3. No
employer shall exceed the number of deductions per day permitted by
454 CMR
27.05(3):
Deductions
for Meals as of January 16, 2015, said limits permitting a deduction
of one meal for a domestic worker working three hours or more, a deduction of
two meals for a domestic worker working two meal periods or eight hours of
work, and a deduction of three meals for a domestic worker if lodging is
provided or if special permission is granted by the Director of the Department
of Labor Standards.
(c)
Lodging.
1. An
employer may deduct from a domestic worker's wages an amount for lodging
actually provided to the domestic worker, provided that:
a. the lodging is voluntarily and freely
chosen by the domestic worker; and
b. the lodging complies with the state
sanitary code contained in 105 CMR 410.000:
Minimum Standards of
Fitness for Human Habitation State Sanitary Code: Chapter II or other
regulations that may be promulgated under the authority of the Department of
Public Health or successor agency under M.G.L. c. 111.
2. An employer shall not deduct from the
wages of a domestic worker an amount for lodging if the employer requires that
a domestic worker reside on the employer's premises or in a particular
location.
3. No employer shall
deduct from the wage of a domestic worker a sum for lodging in excess of the
amounts per day set forth for lodging voluntarily and freely chosen and
actually desired and used by the domestic worker, as prescribed by
454 CMR
27.05(2):
Deductions
for Lodging and promulgated pursuant to M.G.L. c. 151, as of January
16, 2015, said maximum deduction being $35.00 per week for a room occupied by
one person, $30.00 per week for a room occupied by two persons, and $25.00 per
week for a room occupied by three or more persons.
(d)
Other
Deductions. No other deductions shall be made from a domestic
worker's wages other than for specifically named, identified, and agreed-upon
purposes, goods or services required or expressly authorized by law.
(e) An employer's dissatisfaction with the
quality of a domestic worker's services shall not be a basis for withholding,
or taking deductions from, a domestic worker's compensation.
(6)
Privacy.
(a) An
employer shall not monitor or record, in any manner, a domestic worker's use of
restroom or bathing facilities, sleeping or private living quarters, or any
activities associated with the worker's dressing, undressing, or changing
clothes.
(b) An employer shall not
restrict or interfere with a domestic worker's private communications, unless
the domestic worker's private communications significantly interfere with the
domestic worker's performance of expected duties. An employer may establish
reasonable restrictions on a domestic worker's private communications during
working time.
(c) An employer shall
not monitor a domestic worker's private communications.
(d) An employer shall not take any of the
domestic worker's documents or other personal effects.
(7)
Trafficking
Prohibited. An employer shall not engage in any conduct which
constitutes forced services, trafficking of persons for sexual servitude, or
trafficking of persons for forced services under M.G.L. c. 265, §§
49, 50, and 51, respectively.
(8)
Communications. If the employer requires that a
domestic worker reside in the employer's premises or other particular location,
the employer shall provide the domestic worker with the ability and reasonable
opportunity to access telephone and internet services and permit the domestic
worker to send and receive communications by text message, social media,
electronic or regular mail and telephone, without the employer's interference.
If the employer has telephone or internet services, the employer shall provide
reasonable access to the telephone and/or internet service without charge to
the domestic worker. If the employer does not have telephone and/or internet
services, the employer shall provide the domestic worker with a reasonable
opportunity to access telephone and/or internet service at another location at
the domestic worker's expense.
(9)
Termination.
(a) If a
domestic worker resides in the employer's household or at a location required
by the employer and the employer terminates employment without cause, the
employer shall:
1. provide written notice and
at least 30 days of lodging, either on-site or in comparable off-site
conditions; or
2. provide written
notice and severance pay in an amount equivalent to the domestic worker's
average earnings for two weeks of employment. The average weekly earnings for a
domestic worker who has been employed for less than two weeks shall be arrived
at by extrapolating from an average day's wages. If the employer chooses to
provide either off-site lodging or severance, the employer shall allow the
employee at least 24 hours to vacate the employer's household.
(b) If a domestic worker resides
in the employer's household or at a location required by the employer, 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.
(c) If a domestic worker
resides in the employer's household or in a location required by the employer
and termination is for cause relating to conduct other than that described in
940 CMR 32.03(9)(b), the employer shall provide:
1. advance written notice; and
2. a reasonable opportunity to find other
lodging of no less than 48 hours.
(d) A domestic worker involuntarily
terminated by the employer shall be paid in full on the last day of employment
as required under M.G.L. c. 149, § 148.