Episode 10: New Jersey Domestic Workers Bill of Rights Transcript
Transcript: Shana Siegel, Erdol Turnacioglu
Shana Siegel: Welcome to Norris MacLaughlin’s Aging Answers, a limited podcast series discussing the key topics of elder law planning and long-term care. I’m your host, Shanna Siegel, Practice Group Leader of the Elder Law Group and member at Norris McLaughlin. In this episode, I’m joined by Erdol Turnacioglu, who’s going to talk to us about a new law. Hi, Erdol, how are you?
Erdol Turnacioglu: Good, Shanna. Thanks for inviting me on here.
Shana Siegel: Absolutely. So, tell us about the New Jersey Domestic Workers Bill of Rights.
Erdol Turnacioglu: So, this was something that has been passed in several other states, including New York, California, Massachusetts, and a couple of other cities, including Philadelphia and Washington, D. C. it seems that Jersey has gotten onto the, onto the, I don’t want to say bandwagon, but just in terms of, um, protections toward those people that are working, you know, in Um, in households such as home health aides, cleaners, it really is amazing the full scope of, coverage that is provided by the New Jersey Workers Bill of Rights. It’s something that was fought over for a few years and has finally passed recently. And the amount of protection that it provides these domestic workers is pretty profound, all things considered.
Shana Siegel: Great. And we’re talking to you because you’re an employment lawyer?
Erdol Turnacioglu: That’s correct.
Shana Siegel: If my clients or individuals have someone working in their home, and it’s a home health aide through an agency, then this law doesn’t apply to them, correct?
Erdol Turnacioglu: Not necessarily, from my understanding. It looks like it can be something that is involved with a home health agency, although it’s not 100 percent clear. Correct. But because there are certain exceptions, for example, those that are covered under Medicaid, it looks like Medicaid coverage is specifically exempt from the law.
Shana Siegel: Okay, but it does apply to private aides. So, if you were to hire the person down the street or the first person that you found on care.com, or someone referred from your uncle so, those individuals would be covered by this law. Is that right?
Erdol Turnacioglu: That’s correct. So, I just wanted to point out, I mean, in the very first part of the act, it pretty much encapsulates exactly what it’s sort of like the whereas clause for any sort of agreement. I mean, it just says that the legislator finds and declares that, and I’m not going to say section one, you know, subsection a, I’ll just read it. Domestic workers provide valuable services in industries such as in-home childcare, Housing, housecleaning, home care, cooking, gardening, and other household occupations. The labor domestic workers provide is an important contribution to the state’s economy and prosperity, including but not limited to, by providing support services that enable other individuals to participate in the workforce. It continues, many domestic workers are women, immigrants, and persons of color who work in or about private homes isolated from other workers. And there’s more in terms of the studies that are involved in developing this law, but that’s pretty much what they’re going for in this new law is the protections for those people, persons, minorities, women, immigrants, people of color that traditionally were not covered even under the law against discrimination. So, this really encapsulates a whole swath of people that otherwise had been ignored, not protected against. I mean, you know, there’s stories that I’ve seen while researching preparation for this show. It’s sad what, what they’ve been, uh, had to deal with. So this Law is intended to protect them against such abuse or neglect.
Shana Siegel: Sure, and in some ways, I mean, it’s a great act, and it’s wonderful that these individuals are now receiving this protection. But I think for employers and people who maybe don’t even think of themselves as employers, but they just need help and they brought in someone to provide care to them. Now all of a sudden they just need to know how to comply with the law. So, if an individual wants to protect their worker and wants to comply with this law, what should they be doing? What do they have to do now under this rule?
Erdol Turnacioglu: So they’re required to First of all, create a contract with the domestic worker and in terms of like, what’s the scope of the services, how much they’re going to get paid, you know, those sort of things that are required to provide meal and rest breaks for these domestic workers, at least a 30-minute rest break meal break, sorry, for five consecutive hours, they have to give notice of the, um, Domestic workers rights under the law. And there are penalties that are associated with this. I mean, you know, anything from, I think the 750 to 13,000 plus.
Shana Siegel: So, I think one of the things that people get confused about is the idea of an independent contractor. So, like, am I an employer or is the person who is coming to work in my home are they an independent contractor? I know sometimes people think, Oh, well I can get around the tax law. laws by saying they’re an independent contractor. How does that play in here? And, you know, is it something that they could just say, Oh, well, not this doesn’t apply to me because this person’s an independent contractor.
Erdol Turnacioglu: Right, so you know, generally speaking, many of the employment laws are enacted to protect, as you would suspect, employees. So, you’d have to have that employer-employee relationship and for the most part, independent contractors are not typically covered under any of these sorts of employment or labor laws. You know, this has effects in terms of like health care coverage, tax withholdings, and deductions. And this is something where sometimes companies, businesses can get in trouble with because They may think that this person is an independent contractor. I don’t know. I’m getting like beyond what we’re talking about, but in terms of like, if somebody’s salary, they think that it’s an independent contractor and it may not be, or if it’s a wage and hour issue over time. But with this particular law, it looks like they define, for example, an employee agency means any person or entity that procures or attempts to procure employees, independent contractors, or domestic workers for employers or companies. So, it looks like this law. Is casting a wide net to provide a protections to those who would or attempted to be considered independent contractors to be able to see how that plays out.
Shana Siegel: Yeah, usually domestic workers don’t qualify as independent contractors as I understand it. So, I can’t see that that would really, you know, you’d really be able to claim that.
Erdol Turnacioglu: True, true.
Shana Siegel: Yeah.
Erdol Turnacioglu: But, you know, just because, you know, I’ve seen other instances where, you know, for example, in the restaurant industry, where the livery services, you know, whether it’s Uber or similar things where they tried to, or trucking industry, where they try to label somebody as an independent contractor, even though, you know, they control the means of transport, et cetera. So, again, it’s an issue where they may try to get around it, but I think this law prevents those types of, uh. schemes.
Shana Siegel: Yeah, I would think so. So, we have always, I mean, way before this law, encouraged clients to work with agencies because of some of the protections. You’ve got those individuals that are bonded, they’re trained. There’s liability protection. So, in general, we You know, have recommended working with agencies. Of course, everybody doesn’t want to do that. Sometimes people want to, you know, hire directly, but can you elaborate on that in terms of, like, from an employment law perspective, how working with, uh, an agency might, you know, help rather than, I mean, obviously not having to comply with this, right but, um, but, but what other protections people can kind of, you know, see if they’re working with an agency instead of direct hire.
Erdol Turnacioglu: I think it’s important. Really great idea that your firm is focusing on promoting the idea of working with the agency because again, just like you said, they’re bonded oftentimes they have the worker’s compensation insurance that’s necessary. So, you know, God, if something happened to that domestic worker, they get injured on the job, you’ll have the workers come protection because it’s great. Seems to me that it would be something that’s, you know, injury during the course of their employment and other protections involved in terms of protection with wage and hour issues, making sure they’re getting the right pay stubs if they have to work overtime that there’s those things in place. I mean, you know, I think that this type of statute was created to avoid or to protect those that didn’t necessarily work with an agency to sort of get people to. Move away from this sort of hiring of those that are fly by night. I wouldn’t say fly by night, but just, um, not really part of any sort of like agency or group that is spending the money, the investment on these domestic workers, you know, and leaving those types of workers vulnerable to being taken advantage of. I think that once you have a domestic worker, that’s part of an agency, whether or not, you know, and again, we can talk about how some lawyers are better than others, but for the most part, they will have the necessary you know, workers compensation insurance. They’ll have the necessary payroll protection in place to ensure that the domestic worker is being taken care of, like any other employee.
Shana Siegel: Sure. Yeah, I think that, you know, I get it. They’re really vulnerable when they’re on their own. And that’s, you know, I guess where this law comes in is to try and minimize that vulnerability. And, We’ll probably make some people more likely to go work with an agency rather than having to comply with all of these rules. I would think maybe, but I guess we’ll see what happens. One thing that concerns me about this law is how Medicaid is going to look at it. So you may be familiar that Medicaid, penalizes individuals if they’re applying for long-term care Medicaid for unexplained withdrawals of cash and very often these workers were being paid cash and so this was an issue for Medicaid purposes, and in the past we do affidavits to clarify this but now as I mentioned to you, I’m, I’m kind of concerned that Medicaid’s going to require that every Medicaid Bit of this law all of the little details must be complied with or else you’re not going to get Medicaid So I feel like that’s you know a big concern.
Erdol Turnacioglu: Yeah, I agree I mean I’m not as familiar with Medicaid as as you are. But certainly, there are compliance issues in terms of what is going to be required by Medicaid, you know If there’s somebody like an elderly person being cared for by a home health aide or similar um You know because oftentimes, you know government agencies such as Medicare Medicaid you know, at least from the employment law context, if they’re treating a particular client of mine who’s on the employee side and for like a We’re going to disability claim, for example, and, you know, the workers comp issue and we end up settling the case. And this is common in the personal injury realm, too. They’ll have to go through the Medicare fallbacks to get the money back that Medicare paid out for the treatment.
Shana Siegel: Sure.
Erdol Turnacioglu: Similar type of thing with Medicaid. So, you know, at the end of the day, Medicaid’s going to want to get there, sort of, money back or just the right protections in place because it’s their own interest as well to make sure that the coverage is being complete and accurate for lack of a better term.
Shana Siegel: Yeah. Yeah. One other thing I noted about the law Is that there’s requirements on notice for termination and you know I’m just thinking about my clients that when a client has to go into a nursing home or even if it’s just not a good fit They hire somebody and then it’s not really working out or when the individual is Who needs the care dies, like in all those situations, you know, in the past, you would just, you know, let that person go and maybe you gave them a week’s worth of pay or something. But now under this, there are very specific rules about what you have to do during termination. Can you address that a little bit for us?
Erdol Turnacioglu: Sure. Rules and regulations haven’t really promulgated yet, but there’s certainly the notice period that’s in effect. You have to provide at least two week’s notice to terminate a domestic worker and those that are within domestic workers, they’re required to do a minimum of 4 weeks. So, yeah, I, you know, I’ve never really considered what you were mentioned in terms of, like, you know, these issues where somebody passes away or has to go get transferred into an assisted living facility. So, it’d be interesting to see how that will be dealt with. I know that. From the employment perspective, for example, with New Jersey, Warren actor, the federal Warren act. You know, there’s requirements that they have to give you 60 days’ notice or get penalized. But oftentimes the employers end up just paying those 60 days as part of a compromise between the notice and, you know, the requirement and the needs of what the bulk employees. And again, the more an active system matters, you know, massive layoffs. So, we’re talking about, you know, hundreds of people that are being laid off. Oftentimes the employer would just pay for that time. So, I think that If I were going to bet on this stuff and if I was an employer, if I was going to advise an employer without any further guidance. From the rules, regulations, et cetera, I would say to sort of follow that guidance of, yeah, sure there’s issues that may come up in terms of not being able to provide for that notice period, but there are solutions. At least from the employment realm to be as compliant as possible.
Shana Siegel: Yeah, it’s just going to cost people more money.
Erdol Turnacioglu: Right.
Shana Siegel: And they’re going to end up having to, uh, to, to pay for longer. Okay, so I guess in closing, what would you recommend in terms of, you know, somebody has It’s a person in there, in their home now. They are, you know, it’s a private employment situation and you know, they learn about this. What do they have to do to comply? Who should they be reaching out to? I guess an employment lawyer like yourself would make sense, right?
Erdol Turnacioglu: Absolutely. There’s certainly a lot of considerations that are in this bill talking to an employment lawyer. Such as myself or somebody that is within their network would be a great way to at least comply to set up the right contract to set up the right procedures in place and you know, to guide again, it’s a very new law. This should be guidance that’s coming out soon, but certainly, if you have somebody right now, that’s, you know, doing domestic work, house cleaning, other sorts of services like that, you know, again, such an employment lawyer, make sure that you’re compliant. Or like you had mentioned, you know, hire somebody from an agency if you don’t have somebody in place right now.
Shana Siegel: Sounds great. I really appreciate it. I want to thank you, Erdol, for coming on, and we actually have a blog that addresses some of this subject as well, so that’s another source of information, and I know I will be encouraging all of my clients to, uh, to reach out to you. This has been Norris McLaughlin’s Aging Answers, a limited podcast series discussing key topics revolving around elder law and long-term care planning. I want to thank you, the listener, for being a part of our conversation, and I want to thank Erdol Turnacioglu for talking with us. Be sure to tune in next time for a brand new episode, and if you’d like to learn more about our work, please aginganswers@norris-law.com.