The start of the legislative lame duck session in Trenton will likely bring the reprioritization of a bill that establishes the “New Jersey Domestic Workers Bill of Rights.”
But despite the good intentions of the bill and the addition of some NJBIA-recommended amendments to it, the legislation will likely bring more challenges and burdens to employers in the care economy if it becomes law.
“We have great appreciation for the amendments that have been made in this bill,” said NJBIA Vice President of Government Affairs Elissa Frank.
“But we are seeking more important changes to provide better balance for employers, especially in the care economy, while also closing some loopholes in the legislation.”
Bill S-723 has mostly lain dormant in 2023. But it is sponsored by Sen. Richard Codey (D-27), who is expected to make it a legacy priority before retiring from the Legislature in January.
While NJBIA supports strengthening worker protections where necessary, it has contended that the bill ignores the protections that already exist for workers, and it will also overburden legitimate businesses in the care industry that provide the jobs that workers seek.
A-B-C YOU LATER
NJBIA’s biggest objection with the initial bill was the inclusion of an ABC test, which is used to determine worker classification, in the state workers’ compensation law.
But through NJBIA’s advocacy and the sponsor’s willingness to work with the business community, that provision was removed.
“That ABC test would have impacted independent contractors working across all industries and altered the entire workers’ comp system,” Frank said. “So, we shouldn’t understate that amendment.”
CARE WORKER CONCERNS
The inclusion of home healthcare workers in the bill remains the biggest sticking point.
NJBIA has contended that certified home health aides and the businesses they work for are already heavily regulated by the state 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, Frank said.
“A certified home health aide must be employed by a licensed home health agency, healthcare service firm, or hospice in New Jersey,” she said. “The agency can receive funding from both private and public dollars depending on the patient.
“So, you could have a situation where 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 continue to encourage the removal of certified home health aides entirely from the bill, because they are licensed and highly regulated to avoid overburdening an industry that is already strained and facing shortages.”
Other NJBIA concerns with the bill include:
- Many of the worker 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 the work being performed.
- For employers that fail to allow for the 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. It also 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.
- The legislation requires any domestic worker that works five or more hours per month to be provided with a detailed written contract. NJBIA warns that time is an incredibly low threshold and will capture domestic workers who do irregular childcare or housekeeping work.
- The bill creates joint and several liability between individuals and employers with an overlapping employment relationship with a domestic worker.