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.”
First and foremost, I would like to thank the sponsor for amending the bill to remove the ABC test in the state workers’ compensation law. This amendment was very meaningful to our members and ensures that this legislation is targeted at domestic workers rather than impacting all independent contractors.
NJBIA is fully supportive of ensuring that domestic workers in our care economy are afforded the same protections and fair treatment for their important work as workers in other sectors. Bad actors that exploit domestic workers as outlined in the beginning of this bill should absolutely be rooted out. However, there are several provisions in this legislation goes beyond ensuring domestic workers are fully protected and afforded the rights established in the various state labor laws currently in statute incorporated in this bill.
Many of the benefits included in this bill such as break times, termination notifications and extensive contract requirements are not present for other types of workers in other parts of state or federal law. These types of benefits are typically negotiated for by individual workers or through collective bargaining agreements and can vary based on the business and the nature of work being performed.
For employers that fail to allow for the newly mandated meal and/or rest periods included in the bill, either due to lack of ability or the nature of the domestic work (medical or childcare), the bill indicates that the domestic worker is entitled to an additional one hour of pay. This goes beyond ensuring that workers are paid for hours worked, which is legally required under the Fair Labor Standards Act and mandates additional payments for workers. Additionally, this will complicate calculations for overtime compensation by employers.
The two- and four-week termination notification requirements are also not fair for the employer community and go beyond what is afforded to other types of workers. Conversely, this bill does not require employees to provide two or four weeks of notice before they leave their position. This mandate strikes against standard at-will employment and eliminates a sense of balance in terms of employment. Lastly, this legislation would require any domestic worker that works five or more hours per month to be provided with a detailed written contract. The mandate for an employment agreement for anyone working five hours or more per month is an incredibly low threshold and will capture domestic workers who do irregular childcare or housekeeping work, for example. At a minimum, this threshold should be raised to capture domestic workers who work much more frequently. Additionally, these written contracts must include a “weekly schedule including number of hours per week.” Mandating the inclusion of a set weekly schedule in an employment agreement can be unrealistic for domestic work in some circumstances because schedules and work assignments may vary based on the nature of the work.
In addition, our concerns with some of the extensive benefit mandates, we have several concerns over liability for employers through this bill. The bill creates joint and several liability between individuals and employers with an overlapping employment relationship with a domestic worker. This section is very vague and can create joint liability between multiple businesses and/or private individuals who 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.
Additionally, this bill includes a rebuttable presumption for retaliation that needs to be revised for practical considerations. We fully agree with protecting workers from retaliation, however we believe part of this section should be clarified for practical purposes. The retaliation section states that “in the case of temporary or seasonal employment that ended before the close of the 90-day calendar period, the presumption only applies if the hiring entity fails to rehire a former domestic worker at the next opportunity for work in the same position.” We suggest revising this section to remove the word rehire and replace it with “offer employment to.” This will clarify that so long as a hiring entity offers employment to the former seasonal or temporary worker, they will be exempt from the rebuttable presumption whether or not the domestic worker chooses to accept that position and is rehired.
We are concerned with the change of the definition of casual employment in the state workers’ compensation law through this bill. Changing this longstanding definition is unnecessary and may have unintended consequences for domestic workers and other types of workers in New Jersey. We suggest updating the bill to leave the current definition intact.
Lastly, we are concerned with the creation of a Domestic Standards and Implementation Board through this legislation. Our state currently has an unprecedented number of vacancies on many of the boards and commissions created through statute. To avoid further burdening the appointment process, the Legislature should not create a new board unless it is absolutely necessary. We recommend removing the new board and its responsibilities from this legislation. Even without this standards board, the bill will still be able to provide added protections for domestic workers and enforcement through the resources and personnel at the Department of Labor and Workforce Development.
This legislation must be significantly amended to provide a better sense of balance for employers in the care economy while also closing loopholes in existing law and providing additional protections for domestic workers. We look forward to continuing our dialogue with the sponsors on these concerns. In order to make this bill workable and avoid overburdening the business community, we ask you not to advance this bill out of committee and allow more time for thoughtful amendments to be considered.