Typically, the saga begins with a text message requesting a steep pay increase.
If the demand is not met, ensuing texts demand back pay.
If these doesn’t yield results, an official demand letter will be sent seeking as much as $80,000.
If you employ a babysitter, housekeeper, or anyone else to work in your home for a few hours a week, it’s time to take protective measures and get educated about the law – before those texts start coming in.
Cleaning Up Their Wages
I interviewed Leah in her modest Marine Park kitchen. Her housekeeper has worked in her home for the last 10 years in what seemed like a good arrangement with a mutually agreed upon wage. Just last week, Leah received a text message that demanded back pay, overtime, and other benefits. Leah has sought legal counsel to help resolve the matter; the process is costing her thousands of dollars.
Leah believes that her housekeeper is being coached by a lawyer since the language and terminology of the text don’t sound like the woman they have come to know. Although Leah admits that the salary was on the low end, she compensated her housekeeper in other ways, with meals and rides, bonuses and gifts. “This is a slap in the face,” Leah says. “She barely speaks English, and we trained her and referred her to other clients. And now we are the ones being penalized.”
Leah says she knows of three other families who received similar text messages and share her predicament.
Rosa, a cleaning lady who works for multiple families in the area, agreed to speak to The Jewish Echo with the help of a translator (her employer). Rosa arrived to the United States from Guatemala a few years ago. She says that the conversation about compensation or legal action has been circulating within her social network of domestic workers. They talk about it at the park, at the bus stop, and while taking their young charges to the public library. Rosa says that many of the workers are fed up with the extra levels of work before major holidays and feel that they are being taken advantage of. She reports that childcare sometimes spills over into cleaning and that housekeepers feel they are getting squeezed too tight. Rosa says that she was approached by a woman who successfully won a case in court against her employer; she encouraged Rosa to begin the process with a series of prepared texts and to gather other domestic workers to file a collective suit. Rosa declined the opportunity. She says she is content at her current job and doesn’t want to cause any deportation problems for her family members who are trying to apply for SSI for their disabled son.
The prepared texts Rosa mentioned are only the start of a long, complicated saga. And they could be followed by an official letter demanding up to $80,000.
“No one pays that. It’s ridiculous, but it’s a starting point for the other side,” explains Yair Bruck, a local labor and employment attorney who became involved with the issue after several families reached out to him for assistance. He has seen an increase within the last few years of such cases in several Brooklyn neighborhoods and has been able to settle many of the cases out of court.
Before you label this a “Jewish issue,” Bruck is quick to point that he has seen similar cases in New York against non-Jewish homeowners and also brought in courts outside of New York.
The Price of Decluttering
According to Good Housekeeping, housekeepers charge an average of between $20 and $40 dollars per hour, and between $15 and $25 dollars per 100 square feet. Los Angeles has the highest average wage of $37.60 an hour, while in New York it is $26.72. I took an informal poll asking local families how much they pay their housekeepers or babysitters and the average consensus is far below that.
“They are just like all other employees and must be treated as such.” maintains Bruck, who warns against underpaying any employee.
Do housekeepers need insurance coverage, time-and-a-half, and vacation days? According to the U.S. Department of Labor, any individual whom you employ to provide services in your home whom you pay directly and whose total payments in the calendar year meets the IRS household employment threshold (currently $2100) must receive a W-2 from the employer, and the household employer must pay the payroll taxes. First, you must determine if your housekeeper is an employee or self-employed contractor (see sidebar). If your housekeeper is self-employed, she’s responsible for her own taxes and you don’t need to worry about withholding anything from your payments. If she is an employee, you need to withhold Social Security and Medicare tax from her wages. Even if you pay her with cash, you’re required to hold back taxes and submit them to the IRS. You’ll also need to pay the employer’s share of Social Security and Medicare taxes. You may need to pay unemployment insurance for her, and you have the option of withholding Federal Income Tax from her checks as well. You’ll need to give her a W2 form showing the wages you paid her for the previous year by January 31 of each year. When you file your own tax return, you’ll include Schedule H, Household Employment Taxes. This is in addition to of course verifying that she is legal.
Paying one sum for the entire day or week to avoid hourly wages doesn’t change anything. Each hour must be accounted for, and it’s best to document all signs-ins and check-outs. Keep track of any overtime and hold onto records for at least six years.
While we’re talking law, it is important to know crossing state lines – say, if you decide to bring your employee along for a vacation or to the country – could violate federal law, according to Joseph Aron.
Not My Problem
You may insist that you don’t work for INS, but apparently, according to the federal government, you do.
Some of the families we spoke to who were issued summonses claim they never bothered to inquire about the legal status of their cleaning help. They didn’t think it was their business. Well, according to employment attorney Book, that is incorrect. “It is unlawful to hire an undocumented worker and the employer is the one responsible for verifying his/her status,” he warns. As of 1986, immigration law made it mandatory for all employers to look into their workers’ worth authorization status (Form I-9, which contains their social security number) or face severe penalties. This can include your housekeeper as well.
For those that think they are saving money by not abiding by these rules and thereby not paying legal wages, attorneys say think again.
“Some people believe that undocumented workers do not need to get paid legal wages since they are here illegally, but that is incorrect,” explains Joseph Aron of Aron Law, an attorney who specializes in employment discrimination. “They are entitled to minimum wage and all federal and state laws.” Immigrants and undocumented workers, who according to the most recent Census number 11 million, have been covered under the federal Fair Labor Standards Act (FLSA) since 1974.
This issue goes far beyond a weekly paycheck. Your housekeeper can clean you dry in many cases if they are undocumented. For example, while wiping the banisters, she falls tumbling down the stairs and gets hurt. This is considered an on-the-job injury and being that she is ineligible for state disability benefits or worker’s compensation, you are now going to be responsible for her injury and medical costs. Or consider this: your housekeeper is polishing an expensive crystal item from your china closet and breaks it. If she doesn’t have the financial means to fix it or buy a new one, she cannot be held legally responsible for any damage.
See You in Court!
Too many families do not take this threat seriously and have a variety of reasons why they think this will never happen to them. They convince themselves that:
1)” I only have cleaning help for a few short hours a week; this doesn’t apply to me.”
2)” We aren’t rich; she sees we don’t live in a mansion.”
3) “Our housekeeper is a nice lady; she would never think of doing something like this.”
4) “Our housekeeper is only here temporarily and is planning on returning to her native country.”
5) “She doesn’t have the money to pursue this.”
For those employers who think they will have their day in court, Aron warns it’s not that simple. In New York, wages are punitive so in the end most will have to pay back double, not including legal fees. This is why lawyers love to take on cases like these. “It has become an industry,” Aron admits.
Chaim B. Book, an employment attorney at Moskowitz & Book, an LLP focusing on NYS Labor law and other areas in the workforce, agrees that there is a significant increase in private lawsuits by housekeepers and nannies as well as government investigations by the New York State Department of Labor relating to overtime and other wage violations.
David Reischer, Esq. Attorney and CEO of LegalAdvice.com, points out that any immigrant can sue an employer for unpaid overtime or failure to pay minimum wage. District Courts have repeatedly held that the employer is not allowed to inquire into the citizenship status of an FLSA claimant and that the immigration status of the plaintiff is irrelevant in an FLSA case.
Bruck adds that most are unaware that if the defendant seeks to gain leverage by informing immigration or ICE of an undocumented employee, the move will be viewed by the court as retaliation. Not only won’t it be a successful tactic, but it will make matters worse for the homeowner in terms of additional exposure and liability to the cleaning lady.
There really is no legal defense for not paying the minimum wage here in NYC of $13.50 an hour. Bruck says that if homeowners do not resolve disputes in pay early on, the average legal fees can amount to $35,000 to $50,000. It is best to settle disputes quickly. Hiring a lawyer will help you mitigate the damages properly.
Wiping the Slate Clean
Most lawyers do not see this issue subsiding. Aron even refers to it as the “new personal injury lawsuit.”
Reischer admits that the system is flawed and agrees that comprehensive immigration reform is desperately needed in America right now so both sides are treated fairly.
Bruck strongly advises homeowners to keep accurate and complete timesheets and pay records, to be reviewed by the housekeeper each week, for the full applicable statute of limitations, which is six years in the State of New York.
“You do not need to fear your nanny or housekeeper,” says Bruck, “and you cannot undo the mistakes of the past but going forward it must be done right.”
“You cannot rip people off; it’s simple halachah,” says Aron.
For more information check out https://www.labor.ny.gov/legal/domestic-workers-bill-of-rights.shtm.
SIDEBAR: Self-Employed Contractor or Employee?
. Has multiple clients
. Sets her own schedule/works independently
. Brings in her own supplies
. Advertises her services
. Supplies provided by employer
. Hours set by employer
. Job details dictated by employer
Sidebar AVOID THE MESS
Hire a housekeeper through a legitimate agency
Maintain fewer than 40 hours per week
Pay by check
Insist that all domestic workers sign in and out each day and document their hours and days of work
It one week now I haven’t been paid not even for my three days I work an am not here to play games am 44 years old an I know all them tricks in the book tomorrow wouldn’t pass without am coming with a police officer for at least my three days pay the overtime you an your husband will talk to my lawyer an I can bet he will not subtract a penny as I do my taxes for the year wasn’t paid my holiday Which is a must didn’t get plus my two weeks soveign pay I’ll gv u all up to 12i don’t get my money I’ll show up with the police an then the lawyer will tk it from there I had enough of dat (expletive) with you all am not taking no more (expletive) from two of your all I don’t take (expletive) from children for long
I hv no time for your games an lies anymore you have up to eleven tom you don’t pay me my money I done talk to you you will talk to my lawyer you will pay your lawyer my lawyer an me I guaranteed you’ll spend more tomorrow is your sabbath you are fooling yourself you can’t fool the man above . I would never ever work with another one of you all all the pics I hv of all the abuse I will bring to labour you all will learn a lesson