New Yorkers who employ of domestic workers should note two recent amendments to the New York State Human Rights Law (“NYSHRL”) that went into effect on December 31, 2021, which together extend full protection of the NYSHRL to individuals employed in domestic service in New York. In addition, beginning on March 12, 2022, employment protections afforded by the New York City Human Rights Law (“NYCHRL”) will apply to all domestic workers.
The first amendment to the state law removed language from the definition of “employee” under section 292(6), which had previously excluded domestic workers from most of the NYSHRL’s protections. Now, the only category of persons excluded from the definition of “employee” are those individuals employed by their parents, spouse, or child. The second amendment repealed section 296-b, which had protected domestic workers from harassment, but not other types of discrimination.
Guidance from the New York Division of Human Rights notes that there may be situations where an employee’s sex might be considered a bona fide occupational qualification—for example, if there are privacy concerns because the role requires personal care for an individual, such bathing, toileting, dressing, or similar activities. To date, it appears the state has not updated its Domestic Workers’ Bill of Rights. Given the scope of the December 31, 2021 amendments, we expect that an update is forthcoming.
FAQs issued by the New York City Commission on Human Rights provide guidance on how the NYCHRL’s broader protections for domestic workers will apply in the context of domestic employment, addressing topics such as hiring, background and reference checks, treatment in the workplace, firing, discrimination, and retaliation. Among other key points, the FAQs address:
- Limited background check: employers may check an applicant’s employment references, educational history, and criminal convictions, but may not ask about salary history or credit history during the hiring process.
- Targeted hiring: employers may not use language in advertisements that limits employment to domestic workers of a particular national origin, race, gender, religion, or other protected class, but may seek specific job skills.
- Negative reference: employers may provide a truthful reference for a domestic worker, even if negative, but may not give a bad reference, or no reference, to retaliate against a domestic worker for engaging in protected activity.
- Sexual harassment: the NYCHRL’s prohibition against sexual harassment covers not only employers of domestic workers, but also family members and others in the household.
- Discrimination: employers of a domestic worker may not discriminate based on the individual’s race, national origin, sex, religion, age, perceived immigration status, or other protected characteristic, nor may employers retaliate against a domestic worker because he or she raised a complaint of discrimination.
New York City employers of domestic workers should be ready to comply with all of the NYCHRL’s requirements beginning March 12, 2022, and are reminded that statewide protections are already in effect.