United States: Seattle Passes Ordinance To Expand Employment Rights To Domestic Workers

On July 27, 2018, Seattle Mayor Jenny Durkan signed into law the Domestic Worker Ordinance ("the DWO"). Effective July 1, 2019, the ordinance is expected to impact approximately 33,000 domestic workers in Seattle. The new law mirrors similar efforts in several states to expand employment rights to domestic workers.

The 31-page ordinance changes local employment law in several important respects, either by extending previous protections to domestic workers or imposing new and unique requirements on employers. Employers that hire covered workers, directly or indirectly, should begin planning now for compliance and involvement in rulemaking. This article provides a high-level summary of the DWO and key planning points. The ordinance and available guidance can be accessed on the Seattle Office of Labor Standards' ("OLS") website.

Which workers are covered?

Although limited to certain domestic industries, the DWO covers a diverse group of workers in Seattle. It defines a covered domestic worker as any worker (1) paid by a hiring entity (2) who provides domestic services in or about a private home as a home care worker, nanny, house cleaner, gardener, cook, or household manager. It includes such workers whether they are hourly or salaried, whether they work on a full-time, part-time, or temporary basis, and whether they are considered employees or independent contractors.

It excludes, however, three classes of otherwise covered workers. These categories include workers in a family relationship with the hiring entity, home care workers paid through public funds, and casual workers. A person's work is casual if it is "irregular, uncertain, or incidental in nature and duration" and different from the person's customary paid work.

Which employers are covered?

The DWO covers "hiring entities," defined as any person, group of persons, or entity that pays for the services of a domestic worker. It also includes any entity or person acting directly or indirectly in the interest of a hiring entity in relation to the domestic worker. If a household or individual contracts with a separate hiring entity to employ domestic workers, that entity is solely liable for violations of the DWO unless the household or individual "interferes" with a worker's DWO rights.

What does the DWO require?

The DWO imposes several substantive requirements on covered hiring entities:

1) Hiring entities must pay domestic workers, including independent contractors, "at least the equivalent" of the Seattle minimum wage. Hiring entities with 500 or fewer employees will be subject to Seattle's Schedule 2 minimum wage, which will be $15.00 per hour in 2019 (some of which may be made up with qualifying medical benefits or tips). Hiring entities with more than 500 employees will be subject to the City's Schedule 1 minimum wage, which will be $15.45 per hour adjusted for inflation in 2019. For franchisees, the employer size is determined by counting all employees in the franchise network. The Seattle minimum wage will increase each year. More information on Seattle's minimum wage can be found here.

2) Hiring entities must provide domestic workers, including independent contractors, with meal and rest breaks. These are similar to those breaks required under Washington law, with a few important differences.

a) Hiring entities must provide domestic workers with an unpaid 30-minute meal period for every five consecutive hours worked for the same hiring entity, between the second and fifth hour of work. The meal period must be uninterrupted time when the domestic worker is completely relieved from duty. This break must be paid if the worker is required to remain on-call at the work site and return to work if called. If providing a meal break in full is infeasible, the hiring entity must provide an additional 30 minutes of pay for the missed break. According to OLS guidance, the domestic worker can waive this meal break.

b) Hiring entities must also provide a 10-minute paid rest break for every four consecutive hours worked for the same hiring entity. No domestic worker can be required to work more than three consecutive hours without a rest break. According to OLS guidance, a worker can be kept on call during this break. Note that unlike under Washington state law, rest breaks must be "uninterrupted" and cannot be provided intermittently. If providing a rest break in full is infeasible, the hiring entity must provide an additional 10 minutes of pay for the missed break.

c) For workers who reside or sleep at their place of employment, the hiring entity must provide an unpaid 24-hour period of consecutive rest for every six consecutive days worked for the same hiring entity. This requirement does not exist under Washington state law.

3) Hiring entities cannot keep a domestic worker's original documents or other personal effects. The committee notes indicate a concern that hiring entities could otherwise retain such items to pressure domestic workers to remain in their employ.

4) Although not covered within the DWO, Councilmember Lisa Herbold intends to introduce a committee bill to extend employment discrimination protections under Seattle Municipal Code 14.04 to domestic workers.

The DWO further protects domestic workers against retaliation for exercising or asserting these rights, or challenging violations, under the ordinance. Retaliation includes taking adverse action against a domestic worker, threatening to report a domestic worker's or family member's undocumented immigration status, or otherwise interfering with a domestic worker's exercise of their rights under the ordinance.

Enforcement

The DWO's enforcement and remedy mechanisms mirror those provided for in other Seattle employment laws, such as minimum wage and paid sick and safe leave. Enforcement and implementation of the ordinance is entrusted to OLS. OLS has three years after an alleged violation in which to start an investigation either on its own or upon a worker's complaint. Possible remedies include temporary relief during an investigation (such as deposit of funds or bond), reinstatement or front pay, debarment from City contract bidding, business license revocation, monitored compliance, or payment of unpaid wages, compensation, liquidated damages, civil penalties to OLS, penalties to aggrieved parties, interest, costs, and attorneys' fees. Liquidated damages and civil penalties increase substantially with each subsequent violation. OLS can waive civil penalties if remedies due the aggrieved party are timely paid. Either party can appeal the decision of OLS to the Hearing Examiner.

A domestic worker can also bring a lawsuit in court within three years of an alleged violation. The ordinance provides that the time for filing a lawsuit is tolled during an OLS investigation. If the domestic worker prevails, a court can award relief including attorneys' fees and costs, unpaid compensation with interest, liquidated damages up to double unpaid compensation, and a penalty of up to $5,000 if the domestic worker shows retaliation.

Policy Administration

The DWO establishes a Domestic Workers Standards Board ("the Board") as a shared forum for domestic workers and hiring entities to recommend policy changes to City government regarding domestic work conditions and industry standards. The City's Housing, Health, Energy, and Worker's Rights Committee is obligated to timely respond to these recommendations. The Board will engage in a process of soliciting input from hiring entities and domestic workers, such as through public hearings, surveys, or worker and business associations. 

The Board will consist of nine members, expanding to 13 in 2020, and requires specified representation from the domestic worker and hiring entity communities. The members will be appointed by the Mayor, City Council, and the Board itself.

Planning Considerations

Before the ordinance takes effect on July 1, 2019, companies or agencies that employ domestic workers in Seattle should review and revise their policies to ensure compliance with the DWO's requirements, including minimum wage, meal and rest breaks, and days off. OLS will be preparing a model notice of rights and pay information in multiple languages that hiring entities can use. Interested hiring entities may also wish to seek involvement with the Board and OLS' rulemaking processes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Breanne S. Martell
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