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Two Reasons to Worry About the New Domestic Worker Law

December 31, 2014

petervickery

At a recent conference on employment law, I heard a panelist say that the new Massachusetts law on domestic workers will leave people who hire housecleaners vulnerable to lawsuits in the Massachusetts Commission Against Discrimination (MCAD). And those people need not be employers of six or more workers: Even individual homeowners will be open to suit in the MCAD. My first thought was that housecleaners have a hard enough time as it is, without having their potential clients scared away by politicians. After all, who in their right mind would engage the services of a cleaner if the deal included a possible sojourn in the MCAD? My second thought was that the panelist had to be mistaken and that I must go back to the office and read the whole statute for myself. So I did, and now I am slightly more worried than before.

The statute in question is M.G.L. c.149, s. 190 and s. 191, which you can read here and here. Its proponents (the National Domestic Workers Alliance) gave it the moniker the Domestic Workers Bill of Rights, and in their FAQs they claim that it covers “housekeepers, housecleaners, nannies, and those who care for the sick, convalescing or elderly.” Some provisions are already in force, and the law in its entirety comes into effect on April 1, 2015. I suspect that by May 1, 2015, the MCAD will have screened in at least one case of a disgruntled housecleaner suing a homeowner for harassment on the basis of sex, sexual orientation, gender identity, race, color, age, religion, national origin, disability, or some combination thereof. Of course, this will depend on how the MCAD construes the statutory definition of “domestic worker.”

So who is a “domestic worker” under the Domestic Workers Bill of Rights?  Before I tell you who is one, let me tell you who is not one. There are three categories of workers who, although they would qualify as domestic workers in ordinary common parlance, fall outside the statute’s definition of the term. First, personal care attendants. Second, people whose services “primarily consist of childcare on a casual, intermittent and irregular basis,” i.e. babysitters. Third, “an individual whose vocation is not childcare.”

Yes, according to the text of the new law, and contrary to the assertion of the National Domestic Workers Alliance, the term “domestic worker” does not include “an individual whose vocation is not childcare.” The two negatives can trip the reader up, so the exclusion merits some time and attention. Bear with me while I re-state it: The term “domestic worker” does not include “an individual whose vocation is not childcare.”

If my powers of reasoning and grasp of English are up to snuff, a domestic worker must be an individual whose vocation is childcare. In other words, if you are an individual whose vocation is childcare, you are a domestic worker; if your vocation is not childcare, you are not a domestic worker. Either the Legislature consciously and deliberately chose to limit the Domestic Workers Bill of Rights to childcare workers, or did so by accident. I am not sure which is worse.

The exemption within the definition defies one of the elementary principles of draftsmanship and rule-making, one that has been around since antiquity. I am no Latin scholar, but I feel confident that when Cicero said exceptio probat regulam in casibus non exceptis he meant that the exception confirms the rule in the cases not excepted, not that the exception should swallow the rule. Accordingly, if one of my Legislative Drafting students had submitted a draft bill containing such a poorly crafted definition, she or he would have to try again.

The meaning of the exemption is plain. Like personal care attendants and babysitters, people whose vocation is not childcare are not “domestic workers” and not, therefore, entitled to the statute’s protection. From the statutory-construction standpoint that should be an end of it. Interpretatio cessat in claris as the maxim says (interpretation comes to an end when the text is clear). But is this what the Legislature meant? I doubt it, given that the Legislature defined the term “domestic worker” to include caring for the elderly, a task not synonymous with — in fact, quite distinct from — caring for children.

What will happen when Mr. Wooster, facing the need to retrench, decides, as part of his belt-tightening, to let go of old Jeeves, his long-suffering English factotum? If Jeeves files a complaint against Wooster in the MCAD alleging harassment on the basis of — picking a couple of categories at random — age and national origin, what will the MCAD intake staffer tell him: Sorry, you lack standing to sue under Chapter 149, Section 191, because you are an individual whose vocation is not childcare? “Is that so?” Jeeves might say, eyebrow raised.

To summarize, my two reasons for worrying about this new law are (1) what it tries to do, (2) that its failure to do what it tries to do will make no difference to the construction the MCAD will put on it. The Legislature’s unintentional limitation of the law to childcare workers will not prevent the MCAD from construing the law as if the limitation did not exist. The MCAD will pretend that the Legislature had drafted it competently, and the courts will defer to the MCAD’s interpretation.

For housecleaners looking for work in Massachusetts, life may become just that bit harder in 2015.

Peter Vickery, Esq.

Peter Vickery, Esq.

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