On behalf of our member companies that make NJBIA the largest statewide business association in the nation, I write to you in opposition to Assembly Bill No. 822 which creates the “New Jersey Domestic Workers’ Bill of Rights Act.” We have several concerns with how this legislation will impact critical professions such as home health aides that are already highly regulated.
Below is an outline of NJBIA’s questions and concerns. We look forward to further discussing this bill with you to better understand your legislative intent and strengthen protections where necessary without overburdening the care economy.
ABC Test inserted into workers’ compensation law: The addition of the ABC into the state workers’ compensation law through this legislation will impact independent contractors working across ALL industries and alter the entire workers’ comp system. We are strongly opposed to this provision. Domestic employees are already covered by workers’ compensation through their employer’s workers’ compensation coverage, or by the homeowners’ insurance policies of the residence they are working in.
Mandated benefits: Many of the benefits included in this bill such as break times, termination notifications, and days off are not present for other types of workers in other parts of state or federal law. These types of benefits are typically negotiated for workers through collective bargaining or their employment contracts and can vary based on the nature of the work being performed. For employers, that fail to allow for meal and/or rest periods either due to lack of ability or the nature of the domestic work (medical or child care), the bill indicates that the domestic worker is entitled to an additional one hour of pay. Is the intent to provide payment for hours worked or provide an additional hour worth of compensation beyond hours worked?
Inclusion of home healthcare workers: Home health aides and the businesses they work for are already heavily regulated by the Division of Consumer Affairs, Department of Labor and Workforce Development and the Department of Health. Carving out home healthcare workers that are paid through Medicaid or Medicare, but not those paid through private pay is challenging. An individual home health aide must be employed by a licensed home health agency, healthcare service firm, or hospice in New Jersey. The agency can receive funding from both private and public dollars depending on the patient. Thus, a particular home health aide may care for a patient that is on Medicare, Medicaid or private pay or a combination of all payment structures. We suggest removing home health aides entirely because they are licensed and highly regulated to avoid overburdening an industry that is already strained and facing shortages.
Liability concerns: Section 22 creates joint and several liability between individuals and employers with an overlapping employment relationship with a domestic worker. This section is vague and can create joint liability between multiple businesses and/or private individuals that may employ the same domestic worker. This provision will hold individuals and businesses responsible for incidents or violations that are completely out of their control, which can lead to both civil and criminal penalties for employers.
Expansive definition of domestic worker: Domestic workers encompass a wide range of employees and business types. For example, a house cleaning worker and home healthcare worker have vastly different responsibilities and job duties. Each type of domestic worker and business model faces differing needs, challenges, roles, and regulatory frameworks that are already in place that must be thoroughly considered. A one-size-fits-all model for this sector cannot apply in all cases.
Ban on restrictive covenants: Section 14 bars any contract with a domestic worker from containing a non-disclosure agreement, restrictive covenant or non-disparagement agreement. The term restrictive covenant is very broad. We would appreciate some clarity on the precise definition of restrictive covenant in this section. Is it referring to a non-competition agreement? If so, we would suggest explicitly including the term non-competition agreement instead of restrictive covenant for the sake of clarity. As you may know, NJBIA has been advocating for an alternative to a current bill, A3715, regarding restrictive covenants. Our proposal is to ban non-competition agreements on any low-wage employee. The definition of low-wage employee in that bill captures anyone making roughly $65,000 or less annually. As a matter of consistency on our position of this issue, we suggest changing the restrictive covenant language in this bill to banning non-competition agreements for low-wage employees.
Inspection of private homes: We are concerned with the logistics of inspecting and regulating thousands of private homes across the state that employ domestic workers.
Definition of employment agency: Is the definition of employment agency in this bill being changed at all from the current definition utilized by the Division of Consumer Affairs? It appears that section 2 of the bill updates the definition. Is this simply a clarification or a change of definition? Our concern here is that any change of definition could impact all employment agencies outside of just those that help fill domestic worker positions.
Effective date: This legislation makes a number of significant changes to the regulatory framework impacting domestic workers. We suggest extending the effective date of this legislation further than the current 6 months post enactment to date to allow more time for compliance.
Thank you for taking our questions and concerns into consideration. We look forward to further discussing this legislation with you.
