S. 3396 — Domestic Workers Bill of Rights Act

This section establishes requirements under the Fair Labor Standards Act (FLSA) for termination notices and communications access for live-in domestic employees (i.e., employees employed in domestic service in a household and residing in such household). (1) Upon termination, employers must provide written notice within 48 hours and either 30 calendar days of lodging at the employer's household premises (as customarily provided) or comparable premises, or severance pay equivalent to the employee's average earnings for 2 weeks during the preceding 6 months. If providing offsite lodging or severance, employers must allow the employee at least 48 hours after notice to vacate. These requirements do not apply to terminations based on a good faith written allegation (provided within 48 hours of the employer's knowledge) of the employee's abuse, neglect, or other harmful conduct against the employer, family members, or household residents, if supported by a reasonable basis without reckless disregard of the truth. (2) Employers requiring live-in domestic employment must provide reasonable access to telephone and internet services without charge (if available in the household), or a reasonable opportunity to access such services elsewhere (without payment obligation); and must permit, without interference, employee communications via text message, social media, electronic or regular mail, and telephone calls. This section also repeals FLSA section 10 (29 U.S.C. 210) as a conforming amendment.

This section amends enforcement provisions of the Fair Labor Standards Act of 1938 (FLSA) to cover violations of new section 8 (severance pay requirements) as follows: (1) adds such violations, including related regulations, as a prohibited act under section 15(a)(7); (2) under section 16(b), establishes employer liability for section 8(b) violations equal to the required severance pay amount (calculated per section 8(b)(1)(B)(ii)) plus an equal amount in liquidated damages, and up to $2,000 per violation for section 8(c) violations, while expanding section 16(b) and (c) remedies and criminal penalties to section 8 generally; (3) under section 17, authorizes injunctions to restrain withholding of severance pay and other damages due under section 15(a)(7); and (4) under the Portal-to-Portal Act of 1947, extends the statute of limitations to causes of action enforcing section 8.

This section establishes requirements for employers to provide a signed, dated written agreement in plain language—understood by both parties—to each covered domestic employee, defined as a domestic employee expected to perform compensated domestic services for at least eight hours per week. The agreement must include (1) employer and worksite information; (2) employee responsibilities and frequency; (3) hourly and overtime pay rates, payday, and required hours including start times, breaks under section 115, paid holidays and vacations, initial or estimated schedule with average weekly hours over a 90-day period, on-call expectations, typical work/off days, at least 72 hours' notice for schedule changes (with exceptions), pay for last-minute changes under section 112(c), and process for employee-requested changes under section 113; (4) safety and emergency policies; (5) termination notice policy; (6) grievance process that does not limit access to agencies or courts; (7) for live-in employees, rules on entering living spaces and immediate termination/removal procedures (subject to FLSA section 8(b)); (8) applicable policies on health insurance, transportation, meals, lodging, fees, pay increases, severance, equipment, and other benefits; and (9) process for changing any listed policies.

This section establishes a requirement for employers to provide domestic employees (i.e., those defined in section 3(b), excluding individuals providing services through shared living arrangements) with earned paid sick time at a rate of at least 1 hour for every 30 hours worked, not to exceed 56 hours in a calendar year. Employees begin earning such time upon commencement of employment but generally may not use it before the 60th calendar day of employment (with exceptions for employer advances or loans of time); earned time carries over from year to year, must be reinstated (along with permission for immediate use) if the employee is rehired by the same employer within 12 months of separation, and need not be paid out upon termination. Employers with existing paid leave policies meeting these accrual, use, and condition requirements are exempt from providing additional time, and employers may not require employees to find replacements as a condition of use. Paid sick time may be used for absences resulting from the employee's own medical needs or care for a family member, or related to domestic violence, sexual assault, or stalking (as defined by reference to the Violence Against Women Act of 1994). The section also defines related terms, including "employment benefits" (broadly encompassing pensions and ERISA employee benefit plans, among others).

This section establishes fair scheduling practices for employers of covered domestic employees (as defined in section 110(a)), including requirements to provide notice of scheduled work hours through a written agreement or agreed-upon schedule specifying the time of day and days of the week. It requires employers to communicate any changes to scheduled work hours, including on-call shifts, in writing (potentially electronic) at least 72 hours before the start of work and to provide reporting time pay to affected employees—either the full regular rate for cancellations after the employee arrives or one-half the regular rate for cancellations with less than 72 hours' notice (unless the employer is an individual with a disability (or supporting one), requests and obtains employee consent for equivalent alternative hours within seven days). It grants covered domestic employees the right to decline, without prior written consent (potentially electronic), any assignment to expected off-hours identified in their written agreement or outside the good faith estimate of hours. The section exempts these requirements from applying to shared living arrangements or during specified circumstances (e.g., natural disasters or declared emergencies under the Stafford Act; severe weather; employee-requested changes; employer changes due to medical emergencies or public health emergencies declared under section 319 of the Public Health Service Act (42 U.S.C. 247d), including related contagion risks or quarantines). This section takes effect two years after the date of enactment.

This section establishes a right for covered domestic employees to request, and requires employers to grant, per calendar year, either (1) two temporary changes to scheduled work hours due to a personal event, each covering not more than one work day, or (2) one such change covering not more than two work days. A personal event includes (A) caregiving for a family-related individual, (B) attending legal proceedings for subsistence benefits such as SNAP or TANF to which the employee or family member is a party or witness, or (C) circumstances qualifying for safe time (i.e., absences due to domestic violence, sexual assault, or stalking for medical care, victim services, counseling, relocation, or legal action) or family, medical, or sick leave; a temporary change includes using paid time off, trading hours, shifting hours, or short-term unpaid leave, with employees required to notify employers as soon as aware (orally) and propose implementation unless unpaid. This section takes effect two years after enactment.

This section prohibits employers from (1) monitoring or recording a domestic employee while the employee is using restroom or bathing facilities, in private living quarters, or engaging in dressing, undressing, or changing clothes; (2) restricting, interfering with, or monitoring the employee's private communications (i.e., telephone or internet-based communications, including text messages, social media, email, and calls, with non-employers), subject to exceptions; or (3) taking possession of the employee's documents or personal effects. Employers may restrict, interfere with, or monitor such communications if they reasonably believe the communications significantly interfere with the employee's duties or may impose reasonable restrictions on them during performance of domestic services. The section does not preclude liability under other laws.

This section requires employers of domestic employees to provide a paid 30-minute uninterrupted meal break after no more than 5 hours of work—unless the employee is fully relieved of duties and permitted to leave the worksite—and a paid 10-minute rest break for every 4 hours scheduled, to occur during the first 3 hours of consecutive work, without impeding or discouraging such breaks. This section authorizes exceptions where an individual's safety under the employee's care prevents a break, allowing an on-duty break (i.e., not fully relieved of duties but permitting personal activities to the extent possible) if agreed in a revocable written agreement; all on-duty breaks must be paid at the regular rate. The requirements do not apply to shared living arrangements.

This section prohibits employers from deducting wages from or requiring reimbursement by domestic employees for (1) any employer cash shortage or (2) breakage or loss of employer equipment or belongings. It further prohibits employers from deducting wages from or otherwise penalizing domestic employees for communicating directly with consumers of domestic services, rather than through an employer-required application or messaging service. Violations are deemed unpaid wages enforceable under section 118.

This section prohibits interference with, restraint of, coercion against, or denial of rights provided to domestic employees under this subtitle, including by discharging, discriminating against, or retaliating against such employees for exercising those rights or engaging in concerted activities for mutual aid or protection. It further prohibits employers from taking adverse employment actions against domestic employees for protected activities, such as opposing unlawful practices, asserting claims or rights, requesting schedule or agreement changes, informing others about the subtitle, participating in the Domestic Employee Standards Board, or filing related proceedings. The section deems specified immigration-related actions as discrimination—including threatening to report a domestic employee's or family member's citizenship or immigration status to government agencies; requesting more or different documents than required under INA §274A(b) (8 U.S.C. 1324a(b)) (i.e., I-9 employment verification); or misusing the E-Verify system—and establishes a rebuttable presumption of retaliation for any discharge or discrimination against a domestic employee within 90 days of a protected activity (rebuttable by clear and convincing evidence of a permissible reason).

This section establishes enforcement authority, modeled on the Fair Labor Standards Act of 1938 (FLSA), for the subtitle's provisions applicable to domestic employees. Specifically, it (1) grants the Secretary of Labor investigative authority under FLSA section 11(a) (29 U.S.C. 211(a)), recordkeeping requirements under FLSA section 11(c) (29 U.S.C. 211(c)) with submissions generally limited to once per 12 months absent reasonable cause or an active charge investigation, and subpoena power under FLSA section 9 (29 U.S.C. 209); (2) authorizes civil actions by domestic employees against employers, with liability for damages (including lost wages or other compensation, interest, liquidated damages, and—for meal/rest break violations under section 115—one hour's pay per violation up to two hours per workday; for written agreement violations under section 110—$5,000), equitable relief, and reasonable attorney and expert fees; (3) directs the Secretary to receive, investigate, and attempt to resolve complaints akin to FLSA violations (29 U.S.C. 206, 207, 215(a)(3)), assess civil penalties of up to $15,000 for first violations and $25,000 for subsequent violations, and bring civil actions for damages; and (4) provides for administrative review of Secretary orders by administrative law judges under specified procedures of title 5, United States Code.

This section specifies that nothing in this subtitle (1) supersedes a collective bargaining agreement or diminishes employer obligations under any contract, collective bargaining agreement, or employment benefit program or plan providing greater rights or benefits to domestic employees; (2) affects employer obligations to provide reasonable accommodations or comply with other laws, preempts or limits state or local laws providing comparable or superior benefits to domestic employees, or diminishes rights under any federal or state law or collective bargaining agreement; or (3) permits waiver of its rights and remedies by a domestic employee through any agreement, policy, form, or condition of employment.

This section expands the definition of "employer" under Title VII of the Civil Rights Act of 1964 to include any person who employs a domestic employee (as defined in section 3(b) of the Domestic Workers Bill of Rights Act), in addition to persons engaged in an industry affecting commerce with 15 or more employees. (Thus, such domestic employers are subject to Title VII prohibitions on employment discrimination based on race, color, religion, sex, or national origin, regardless of total employee count.)