Executive Summary - Domestic Service Employees Work Group (SB804)
Summary
An executive summary and recommendations from a Virginia work group on domestic service workers, convened by the Secretary of Commerce and Trade after Senate Bill 804 (SB804) passed during the 2020 Session of the General Assembly and removed the minimum wage exemption for domestic service workers. SB804 directed the work group to make recommendations on workplace harassment and discrimination, remedies for nonpayment of wages, safety and health, and unemployment and workers' compensation coverage. The work group met three times, virtually, on August 31, 2020, September 24, 2020 and October 6, 2020, and the text lists key observations on the industry. The recommendations include a legal framework for domestic workers, training, and a hotline for workers to report abuses.
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“Executive Summary - Domestic Service Employees Work Group (SB804).”
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Executive Summary
Employed domestic workers must now be paid the minimum wage in Virginia, a significant
protection for these workers. When Senate Bill 804 (SB804) passed during the 2020 Session of
the General Assembly, the minimum wage exemption for domestic service workers was removed
for the first time. Several other provisions of the introduced bill did not advance, and the
Secretary of Commerce and Trade was directed to convene a work group to review these items.
SB804 directed the Secretary of Commerce and Trade to convene a work group to make
recommendations, including any necessary statutory and regulatory changes, with regard to
protecting domestic service employees from workplace harassment and discrimination, providing
remedies for such employees for the nonpayment of wages, ensuring their safety and health in
the workplace, and protecting them from loss of income as a result of unemployment or
employment-related injury by including coverage in the Virginia Unemployment Compensation
Act and the Virginia Workers' Compensation Act.
Work group members consisted of representatives from the Department of Labor and Industry
(DOLI), the Virginia Employment Commission (VEC), the Workers' Compensation
Commission, as well as domestic service workers and employers of domestic service workers.
The work group met three times and all three work group meetings were conducted virtually due
to the COVID-19 pandemic.
Key Observations
• Domestic service is an incredibly valuable industry.
o Fastest-growing occupations are personal care and home health aides
o There are approximately 60,000 domestic workers in Virginia
o Over 90 percent are female, and more than half are people of color
• Many domestic service workers feel undervalued and invisible and often feel they are not
given the dignity and respect they deserve from employers.
• Many domestic service workers are confused about their rights, and for those workers
who are undocumented, they are too afraid to speak up and talk to government or law
enforcement officials for fear of employers retaliating and/or deportation.
• Domestic service “employee” can mean many different things, and definitions vary in the
Virginia Code. SB804 defines “domestic service” as “services related to the care of an
individual in a private home or the maintenance of a private home or its premises, on a
permanent or temporary basis, including services performed by individuals such as
companions, cooks, waiters, butlers, maids, valets, and chauffeurs.”
• Domestic service is diverse, with three primary types of employment (along with au
pairs): agency employees, household employees, and the self-employed. Each face their
own unique challenges.
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• The unique nature of domestic service employment (individual family employers, work
in private homes, staffing companies, and domestic service employers etc.) poses
significant challenges for both workers and employers.
• Behind closed doors, workers can be more vulnerable to sexual harassment, labor
exploitation, and unsafe working conditions.
• On their own in the labor market, it can be challenging for workers to get all the
information on the protections and resources available to them, and they often
suffer from a lack of support systems.
• The cost and recordkeeping required to provide unemployment and workers’
compensation benefits to employees is complex and challenging for domestic
service employers, particularly individual and family employers. Exposing
individuals and families to civil and criminal penalties for non-compliance is
controversial.
• Two work group participants, Ingrid Vaca and Marta Sanchez, each domestic service
workers, discussed incidents with mixing chemicals that led to injuries while working.
DOLI does have the authority to investigate claims regarding occupational safety, though
neither woman contacted DOLI. Many domestic service workers, particularly those who
are not proficient in English, may not understand their rights, and they may also be afraid
to talk to a state agency official if they are undocumented. DOLI does not ask people who
send complaints about their citizenship, but this is likely not widely known.
• Securing a workers’ compensation policy for domestic service workers would be
complicated. Workers’ compensation benefits are not publicly funded or paid, and the
Workers’ Compensation Commission does not pay benefits, as it is a private insurance
system. Employers are required by law to obtain workers’ compensation insurance to
cover their employees. SB804 does not address insurance coverage, so it is likely that
employers, such as households of domestic service workers, would be required to
purchase workers’ compensation insurance for their domestic service employees and
would be subject to the same civil and criminal penalties for failure to insure as
businesses.
• Domestic service workers who receive at least $1,000 per quarter from a single employer
are currently eligible for unemployment benefits. However, many domestic service
workers may not be aware of their rights.
The following is a list of work group members:
Secretary of Commerce and Trade Brian Ball, Office of Governor Ralph Northam
Chief Workforce Advisor Megan Healy, Office of Governor Ralph Northam
Valerie Braxton-Williams, Virginia Employment Commission
Robert Feild, Department of Labor and Industry
Jim Szablewicz, Workers’ Compensation Commission
Ingrid Vaca, Domestic Worker
Marta Sanchez, Domestic Worker
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Jen Jackson, River City Cleaning
Michelle Lane, Middleburg Homecare
Jason El Koubi, Au Pair Employer
The Work Group met on three separate occasions virtually due to the COVID-19 pandemic, and
the agenda for each meeting and the minutes of each meeting are attached as Appendices A, B,
and C.
o Meeting dates:
August 31, 2020
September 24, 2020
October 6, 2020
Summary of General Considerations
Over the course of three work group meetings, testimony was received from both work group
members and several subject matter experts, including state agency professionals and industry
associations. If the General Assembly wants to take action, the following considerations are
offered:
• Examine ways to increase funding for the State Trafficking Response Coordinator at the
Virginia Department of Criminal Justice Services so that additional staff can be hired.
The goal of the State Trafficking Response Coordinator—to create a consistent,
collaborative, multi-disciplinary response system to how human trafficking cases are
handled in Virginia—is immense. Currently, there is only one person focused on human
trafficking at Virginia Department of Criminal Justice Services, and in order for this goal
to be met efficiently and successfully, more staff and resources are needed. Human
trafficking includes labor exploitation and sex trafficking.
• Develop and distribute an accessible, multilingual resource guide that includes a hotline
number and information for domestic service employees and their employers on
workplace rights. While not all topics would relate to DOLI’s purview, it would be
appropriate for the guide to be housed on the DOLI website since many workplace
protections (e.g. wage theft, workplace safety, etc.) are investigated by DOLI. The
resource guide should include templates for contracts between domestic service worker
and employer or household.
• Request that the Department of Social Services’ Office of New Americans (ONA)
develop a plan for helping undocumented workers to access their workplace rights. ONA
was established in 2020 to promote the economic and civic success of Virginia’s diverse
immigrant communities. The office’s Immigrant Services unit could serve as a trusted
resource for undocumented domestic service workers who may be unaware of the
existing protections and support services available to them.
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• During the work group presentations and discussion, several issues were raised with
regard to unemployment compensation and workers’ compensation. These should be
considered if there is a desire for legislation in the future. (See presentations from Valerie
Braxton-Williams, Robert Feild, and Jim Szablewicz). Greater awareness of the
thresholds that trigger an obligation to pay into the unemployment insurance system if the
quarterly threshold for wages is reached needs to be increased among households that
engage actual employees.
• Explore the feasibility of voluntary third-party portable benefit systems for domestic
service workers, whether actually employed or providing services as independent
contractors..
• The General Assembly addressed workplace protections relating to wage theft and
worker misclassification during the 2020 regular session, and no further recommendation
is provided. DOLI confirmed it can investigate wage theft and worker misclassification
for claims from domestic service workers in a private home.
Workplace safety is important for domestic service workers. DOLI has confirmed the
agency has the authority to investigate complaints related to worker safety, including
domestic service workers, so no further recommendation is provided.
• Explore the development of a uniform definition for domestic service worker that is
consistent throughout the Code of Virginia.
Background of SB804
When SB804 was introduced, it stated that individuals who are engaged in providing domestic
service are not excluded from employee protection laws, laws regarding payment of wages, the
Virginia Minimum Wage Act, the Virginia Unemployment Compensation Act, and the Virginia
Workers' Compensation Act. The measure removed the exemption in the Virginia Minimum
Wage Act for individuals employed by an employer with fewer than four employees. The
measure also authorized an employee who is discharged in violation of the Virginia Human
Rights Act to bring an action against the employer without regard to the number of persons it
employs.
When SB804 passed, it eliminated the exclusion in the Virginia Minimum Wage Act for
persons employed in domestic service. The bill then required the Secretary of Commerce and
Trade to convene a work group to make recommendations, including any necessary statutory and
regulatory changes, with regard to protecting domestic service employees from workplace
harassment and discrimination, providing remedies for such employees for the nonpayment of
wages, ensuring the safety and health of such employees in the workplace, and protecting such
employees from loss of income as a result of unemployment or employment-related injury by
including coverage of such employees in the Virginia Unemployment Compensation Act and the
Virginia Workers' Compensation Act.
2020 General Assembly
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In addition to the passage of SB804 during the 2020 regular session, the General Assembly
passed several other measures that will provide additional protections to domestic service
workers, including protections against wage theft, discrimination on the basis of pregnancy,
discrimination on the basis of gender identity and sexual orientation, and misclassification as
independent contractors. See the chart below for specific policy changes related to domestic
service workers from the 2020 Session.
LEGISLATION POLICY CHANGE DOMESTIC SERVICE
WORKERS (DSWs)
HB395/SB7: Minimum Raises the minimum wage beginning in The exemption for DSWs was
wage increase May 2021 and to $12/hour by 2023. removed from the Virginia Minimum
Wage Act, as well as the exemption
for employees of employers with
fewer than four workers. The
increase in the minimum wage
applies to domestic service workers
classified as employees, not the self-
employed.
HB1407/SB744, Authorizes the Department of Taxation to This legislation protects domestic
HB984/SB894, conduct investigations into suspected cases service workers working as
HB1119/SB662, and of worker misclassification, establishes a employees from being misclassified
HB1646: private cause of action for misclassified as independent contractors.
Misclassification employees, protects employees that have
legislation reported misclassification from retaliation
from their employer, and allows the Board
for Contractors to sanction employers who
do not comply.
HB827/SB712: Protects workers from discrimination and This legislation protects domestic
Discrimination on the discharge on the basis of pregnancy, service workers that are employed by
basis of pregnancy childbirth, or related medical conditions. employers with more than five but
Also requires employers to provide less than 15 workers.
reasonable accommodations and creates a
private cause of action for discrimination.
HB1049: Discrimination Prohibits discrimination on the basis of This legislation protects domestic
on the basis of sexual sexual orientation or gender identity in service workers that are employed by
orientation or gender multiple areas of the law. employers with more than five but
identity less than 15 workers.
HB123: Private cause of Establishes a private cause of action for This legislation protects certain
action for wage theft wage theft. domestic service workers classified
as employees from wage theft.
SB838: Private cause of Creates a private cause of action for This legislation protects certain
action to recover unpaid workers to recover unpaid wages and makes domestic service workers classified
wages general contractors liable and subject to a as employees from wage theft.
penalty for wage theft by their
subcontractors.
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HB337/SB48: Retaliation Protects employees who report wage theft This legislation protects certain
protection for wage theft by their employer from retaliation. domestic service workers classified
as employees from wage theft.
Summarized Testimonies from Work Group Members
Valerie Braxton-Williams, Virginia Employment Commission (VEC)
Valerie Braxton-Williams is a Confidential Assistant for Policy and Legislation with the Virginia
Employment Commission. Ms. Braxton-Williams briefly explained unemployment
compensation as temporary, partial wage replacement for workers who have lost their jobs
through no fault of their own and that it is an eligibility-based program, not an entitlement
program. Claimants must meet various monetary and non-monetary eligibility requirements to be
found qualified to receive unemployment compensation benefits.
Ms. Braxton-Williams continued her presentation by discussing the introduced version of SB804
and the proposed amendment to Section 60.2-215, where the definition of “domestic service” is
re-defined. Currently, if you look at Section 60.2-215, and you look at the amendments, you see
that many people who are exempt are being included under domestic service, that exemption is
being removed with the amendment, and the definition becomes broader. Ms. Braxton-Williams
pointed out that domestic service—meaning service related to the care of an individual in a
private home or the maintenance of a private home, local college club, or local chapter of a
college fraternity or sorority— can be taken to include not only those individuals caring for a
family member but also those that provide services at the home, such as gardeners and
maintenance workers.
In Section 60.2-215, the amendment removes the $1,000 threshold. Currently, employers report
wages that they pay their employees to VEC every quarter. If a person pays an employee a
minimum of $1,500 in any calendar quarter, they must establish an account with VEC to report
the wages they paid and pay taxes on those wages. However, Publication 926 of the Federal
Unemployment Tax Act allows VEC to set that minimum at $1,000 for household employees. If
the amendment in 215 were to stand and the $1,000 wage requirement was removed, it would
raise the threshold to $1,500 in a calendar year.
Secretary Ball interjected to seek clarification; he said to Ms. Braxton-Williams, you have been
referring to Section 60.2-215; SB804 defines domestic service in Section 40.1-28.9. Secretary
Ball asked Ms. Braxton-Williams if the definition in Section 40.1-28.9, the current definition, is
what she is referring to, as that would expand eligible employees to receive the minimum wage
to gardeners and maintenance workers, people not necessarily working inside the home. Ms.
Braxton-Williams responded, saying that she is looking at the coverage under Title 60.2, and the
changes in subsection 215 and how they relate to 60.2. She stated that there is another definition
in SB804 that is proposed under 65.2-101 that says domestic service means services related to
the care of an individual in a private home or the maintenance of a private home or its premises
on a permanent or temporary basis, including services performed by individuals such as
companions, cooks, waiters, butlers, maids, valets, and chauffeurs. So again, you are expanding
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the definition in more than one place in the amendments to SB804. Ms. Braxton-Williams said
she wanted everyone to understand that removing the $1,000 threshold for employers to report to
VEC if they pay domestic service workers $1,000 in a quarter, if you remove the $1,000, it
means they will not have to report until they have paid $1,500 in a quarter. She commented that
this is one of the issues that she shared with the patron of the bill during the 2020 session is the
collateral impact of removing the $1,000 threshold.
Ms. Braxton-Williams continued by stating that in order for VEC to determine eligibility for
unemployment benefits, there is a benefit table in the Code under 60.2-602, and VEC uses that
benefit table to determine the benefit range that is currently $60 minimum to $378 maximum. In
order to be eligible for unemployment insurance, the worker must have at least $3,000 in wages
in his base period. VEC cannot go below the $3,000 to determine benefits. Ms. Braxton-
Williams commented that in conversation with some of the advocates during the 2020 session,
they wanted to lower the benefit amount that domestic service workers would need to have, but
VEC cannot hold the domestic service worker to a different standard and have a lower base
period wage for them than they do for all other classes of workers.
In summary, Ms. Braxton-Williams stated that removing the provision paid of $1,000 in a
calendar quarter would raise the earning threshold to $1,500 for a calendar quarter. She
continued by stating that domestic service workers are subject to the same base period wage
requirement as all other workers. She believes one of the bigger concerns is that those
exemptions that are removed in 60.2-215 in SB804 would impact 60.2-219, and cover people
who are hired by human service agencies. Those workers would now be classified as domestic
service workers, and that is a major concern. The definition being so broad of what a domestic
service worker is would include your gardeners and other people who perform services on the
premises of your house. For example, you hire someone to come in once a month to clean your
house; you hire someone to cut your grass; you hire someone to wash your windows; all of those
are now included under this expanded definition of domestic service. If a person hires those three
people, and they come once every quarter, and they paid those people $1,500 minimum, they
would now have to establish an account with the VEC, and they would have to pay taxes on the
wages that they paid those three people.
Robert Feild, Virginia Department of Labor and Industry (DOLI)
See Appendix D for presentation
Robert Feild is a Hearing and Legal Services Officer at the Virginia Department of Labor and
Industry. Mr. Feild explained that the occupational safety and health side of DOLI is to protect
employees from injury, such as the mixing of chemicals that was described at the first work
group meeting and to provide protection from falls and other hazards that might exist in a
workplace. He pointed out that there are anti-retaliation provisions if someone is discriminated
against or fired for bringing up a safety and health complaint. Mr. Feild noted that the only
programs that would be affected under the new definition of domestic service worker under
SB804 would be payment of wages and occupational safety and health; as to the payment of
wage, DOLI has a new anti-retaliation provision.
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Mr. Feild stated that current law requires there be an employer-employee relationship in order
for DOLI to have enforcement authority and be able to investigate a complaint. The current
definition of employer in §40.1-2 includes doing business in the Commonwealth, and there are
arguments to be made that hiring someone to work in a home does not make it a business. The
objective of Virginia Occupational Safety and Health Program (VOSH) is to protect employees,
and so they tend to define things broadly. Mr. Feild posed the question, if an individual hires a
home healthcare worker or cook, is that person a business? If it is a business, he pointed out that
VOSH has limited resources to inspect a homeowner or individual; most likely then, the only
way for a home situation to come under VOSH enforcement would be through a complaint. Mr.
Feild stated that some potential issues with the complaint process and investigation may be the
employer named in a complaint will say it is not a business, and the other issue is that a
complaint must show employee exposure and employer knowledge. VOSH does not have on
record any complaints or inspections in a private home related to home healthcare or personal
services. They have done inspections of the home healthcare companies.
Mr. Feild pointed out that the anti-retaliation statute states that no person can discharge or
discriminate against an employee for making a safety or health complaint, or for exercising
rights under VOSH. For example, in a situation where an individual is working for an individual,
is injured by the chemicals, as we heard before from Ms. Vaca, the worker may make a
complaint to VOSH. It does not matter in this situation that the employer is not a business.
Mr. Feild stated that when the definition includes, ‘engages an individual to perform domestic
service,’ it will be clear that VOSH can respond to all complaints from domestic service workers.
Mr. Feild made one last comment that the main issue for VOSH is going to be looking at a joint
employer situation. He stated that they will need to understand whether “engage” means that
both the homeowner who hires a service worker and the service-agency that provides the service
worker are joint employers.
Jim Szablewicz, Workers’ Compensation Commission
See Appendix E for presentation
Jim Szablewicz is a Chief Deputy Commissioner with the Virginia Worker’s Compensation
Commission (the Commission). Mr. Szablewicz stated that “domestic servant” is not defined in
the Virginia Workers’ Compensation Act (the “Act”). As Mr. Szablewicz explained to the work
group in our first meeting, in 1980 in the case of Hux v. Trust for Roche, the Commission
adopted the definition of domestic servant as: “a person hired or employed primarily for the
performance of household duties and chores, the maintenance of the home, the care, comfort and
convenience of members of the household.”
Mr. Szablewicz stated that Va. Code Section 65.2-101 specifically excludes by name “domestic
servants” from the definition of employees covered by the Act. He added that even if this
specific exclusion was not included in the Act, there are two other broad exclusions that would
exclude most domestic servants under current law: (i) persons whose employment is not in the
usual course of the trade, business, occupation or profession of the employer and (ii) employees
of any person, firm or corporation that regularly employs less than three employees in the same
business. Section (ii) is essentially a small business exclusion, meaning even if the domestic
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servant’s employer is engaged in the domestic service business, the domestic servant would not
be covered unless that employer had three or more domestic servants regularly employed.
Mr. Szablewicz said that SB804 as originally drafted would not remove the exclusion of persons
whose employment is not in the usual course of the trade, business, occupation or profession of
the employer. He believes the failure to take away that exclusion would, as a practical matter,
exclude most domestic servants from coverage under the Act even with the bill’s adoption
because most employers of domestic servants are homeowners, and very few of them are in the
business of domestic service.
Mr. Szablewicz stated that a big challenge for him is who pays because workers’ compensation
benefits are not state benefits; the funds are not publicly funded or paid, and the Commission
does not pay benefits—this is a private insurance system. Employers are required by law to
obtain workers’ compensation insurance to cover their employees. He pointed out that SB804
does not address insurance coverage, so he believes that employers of domestic servants would
be required to purchase workers’ compensation insurance for their domestic service employees
and would be subject to the same civil and criminal penalties for failure to insure as other larger
employers.
Mr. Szablewicz continued by pointing out that most employers of domestic servants are
individual households, not businesses. Would they be required to purchase workers’
compensation insurance for their domestic servants? Would that include teenagers hired once a
week to cut grass and babysit children? He does not know the cost but wonders if most
households could afford to purchase workers’ compensation insurance. Mr. Szablewicz posed
that even if they could afford it, how would homeowner-employers be made aware of the
requirement to purchase insurance? The Commission has the enforcement responsibility, but
how do they identify the homeowners who should be purchasing insurance? The Commission
does sweeps of businesses, and he wonders if the Commission would need to do sweeps of
neighborhoods, going door to door to identify households that employ domestic servants.
Mr. Szablewicz also commented that if the homeowner does not know to purchase insurance or
chooses to not purchase insurance, there could be an impact on the Uninsured Employer’s Fund
(UEF), which pays benefits to qualified workers of employers who fail to obtain insurance
coverage. The UEF is funded by a tax on premiums received by insurers for workers’
compensation coverage, and has a right of subrogation and recoupment against the uninsured
employer for any benefits paid; the Office of the Attorney General is responsible for pursuing the
uninsured employer to recoup those payments. Mr. Szablewicz stated this leads to the question,
will the tax on insurance premiums need to increase and will the OAG bring action against the
homeowner-employer for compensable claims?
Mr. Szablewicz said that the state could establish a special fund to cover domestic service
workers’ compensation benefits; at this time, the state has no other special funds for any other
category of employee, and he’s not sure what the funding source would be since the Commission
works solely off the tax of the premiums for workers’ compensation insurance. Mr. Szablewicz
pointed out another option could be to expand coverage by the UEF but without a right of
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recoupment. This would likely require an increase in the UEF tax and increase the cost to all
other employers who purchase workers’ compensation insurance.
Mr. Szablewicz concluded by stating that the Commission could adjudicate any claims if this
category of employee is covered but the real question is how does that work with our system of
private insurance in Virginia? There are a few states that are monopolistic that provide all the
benefits but very few do it that way; most states use a private insurance system.
Ingrid Vaca, Domestic Service Worker
Ingrid Vaca has been a domestic service worker for 20 years and has worked as a house cleaner,
home care worker, and nanny. She stated she has encountered many experiences of not being
treated with respect and being denied basic rights as a worker. Ms. Vaca shared that she
experienced wage theft while working for a cleaning company, in which she was picked up at 6
a.m. by the employer and had to clean houses from 7 a.m. to 7 p.m. without any breaks. She was
paid $40 per day or $200 per week for five days of work and, once she did the math, realized that
she was only being paid $3.33 per hour. Ms. Vaca also had to use ammonia to clean, which still
causes her to experience pain in her bones today. She also fell and twisted her ankle while on the
job and was told to keep working even though she had trouble walking; she did not receive sick
time or workers’ compensation. Ms. Vaca left the cleaning company after two months because of
the poor working conditions and felt that there was nothing she could do about how she had been
treated since she didn’t know her rights as a worker; she felt there was no place to go to
complain, and there was no government agency that could support her. She was not yet aware of
the National Domestic Workers Alliance.
Ms. Vaca shared that while cleaning an apartment one day, two liquids came together during the
cleaning process and the resulting mixture was harmful to her eyes; she had to drive herself to
the hospital, pay all her own expenses, and the homeowner did not offer to help. Ms. Vaca also
said that she had faced discrimination from an elderly man, whose house she had cleaned for 14
years, after asking to be paid $20 more per cleaning. She had previously told him that she did not
have immigration papers and that her children were DREAMers. After thinking about whether to
give her the additional $20 more per cleaning, he told her that she was fired and he was going to
hire a company that is “legal” and also mentioned going to court.
She noted that au pairs are still excluded from the Virginia Minimum Wage Act and that they
deserve to be paid the minimum wage like other domestic service workers.
Ms. Vaca was unable to participate in third work group meeting.
Marta Sanchez, Domestic Service Worker
Marta Sanchez has been a domestic service worker for 21 years and has worked as a house
cleaner, home care worker, and nanny. She had a very similar situation to Ms. Vaca’s with a
reaction to the mixture of two liquids and said she had no insurance to cover medications. Ms.
Sanchez noted that domestic service workers are also exposed to not only cleaning agents but
other articles in the kitchen that can harmful.
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She also advocated for au pairs and said when they are excluded [from receiving minimum
wage], it reinforces the idea that domestic work is not real work and that the work that immigrant
women do isn’t important.
Ms. Sanchez said that the most important thing domestic service workers need is a place in
government where they can speak up about their experiences—somewhere to file complaints.
“Even when we experience these abuses, we don’t know what to do. We don’t know where to
file a complaint, what the process is, what the risks are, and how our employers might retaliate.
We need to share information about our rights in a way that is accessible to workers,” she said.
Jen Jackson, River City Cleaning
Jen Jackson is the owner of River City Cleaning, an ecofriendly cleaning company working in
residential homes, which has been in business for 12 years and employs 12-14 people. River City
Cleaning provides workers’ compensation and liability insurance and offers a 401(k) with a
company match. Ms. Jackson said the company cannot afford to provide health insurance to
employees since they would need to increase the rates charged to clients, though she stated she
wished she could. She believes that the better her staff is cared for, the more it creates a family
atmosphere that flows into the services River City Cleaning provides to its clients. Ms. Jackson
stated that an employer should offer continuous appreciation and acknowledgment to its
employees for the services they perform. As to the issue of workers feeling unsafe in a client’s
home, Ms. Jackson commented that fortunately that has not been an issue in her experience, but
the company’s policy is that if an employee feels unsafe, the employee should contact the office,
and a supervisor would immediately come to the client’s home.
Michelle Lane, Middleburg Homecare
Michelle Lane is a registered nurse and owner of Middleburg Homecare, which employs
approximately 30 employees, including registered nurses, license practical nurses, one physical
therapist, one masters prepared social worker, and one occupational therapist. Ms. Lane credits
the success of her business to the fact that she has great employees who are consistent and do not
miss work, which is critically important when providing personal care services. She also
commented that since Middleburg Homecare pays employees well, personal care assistants can
make up to $20 an hour, which puts the worker in a better position to purchase her own health
insurance. Ms. Lane said that this model proves that her company can use the market, provide a
great service, and pay above scale, and it should show other companies they too can provide
excellent care, have their company sought after, and allow their employees to have extra money
and freedom to make their own choices, such as purchasing health insurance. Middleburg
Homecare pays workers’ compensation and liability insurance for its employees.
Jason El Koubi, Au Pair Employer
Jason El Koubi is an au pair employer in Richmond; while he is technically an employer, he
considers himself part of a host family. Mr. El Koubi’s family has hosted four au pairs over the
past five years and stated that the au pair program has been a wonderful experience for his
family. He explained how the au pair program works in the U.S.: the au pair program is
implemented through au pair organizations that follow the guidelines of the U. S. Department of
State; the host family must meet certain requirements to host an au pair and must provide a
bedroom, meals, a phone, and transportation as it relates to the care of the children; au pairs
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share in the housework of the family, cooking and cleaning for the children; cultural exchange is
encouraged through language and food customs; au pairs receive a monetary allowance for
personal use, but the host family covers many of the basic needs. As a host family, Mr. El Koubi
pays the agency a fee of approximately $9,500 a year to be in the program, and the host family is
required to pay the au pair a weekly stipend of at least $195.75 and contribute at least $500
towards the educational allowance. The direct cash cost to the host family is approximately
$20,000 with approximately half of that amount going to the au pair organization-agency. He
pointed out that successful implementation of the program, especially the protections, seems to
depend significantly on the local childcare consultant that represents the agency. Mr. El Koubi
stated that this program is a great experience for his family because the federal framework and
agency capabilities allows the family to focus on the personal relationship and not so much on
the employer-employee relationship.
Testimonies from Meeting Presenters
Alexsis Rodgers, National Domestic Workers Alliance
See Appendix F for presentation
Alexsis Rodgers is the Virginia State Director at the National Domestic Workers Alliance
(NDWA), a national, non-profit organization with a mission to advance domestic workers rights
throughout the U.S. At the time of these interviews, Ms. Rodgers was also a candidate for Mayor
of the City of Richmond. Ms. Rodgers stated that domestic workers are hard to count because of
the nature of the work and so many contractual relationships are verbal and not written
agreements. NDWA’s research shows that this market and this workforce is growing rapidly as
folks delay having children while also having their parents or elderly ones to care for as well.
Because of the increased demand for this care, Ms. Rodgers stated the jobs available to domestic
workers need to be good jobs so that these workers can also provide for their own families while
caring for others.
Ms. Rodgers said that much of the workforce is immigrant and/or undocumented women and/or
in a mixed immigration status family. She noted that in U.S., there have not been great
protections for people based on their immigration status. She reminded the work group that
domestic workers are excluded from many basic rights under federal labor protections, such as
basic labor and safety net protections. As for contractual agreements, many domestic workers
only have a verbal agreement. She noted that the basics of retirement and health care insurance
and the right to unionize are still carved out from the federal labor standard.
Ms. Rodgers discussed priorities for a domestic workers’ bill of rights. The key areas fall into
basically two categories—protect all workers, and extend basis protection to everyone. This
includes eliminating historic exclusions from state labor and employment laws, whether that be
minimum wage, overtime, workers comp, while also introducing a new model and creating new
standards for the unique nature of domestic work. She said that we know that because of the job
that domestic workers are doing, they may often be working in vulnerable situations and may
need unique protections to ensure that they are safe on the job.
12
The NDWA has advanced a state domestic workers’ bill of rights in multiple states. The first
state campaign for a domestic workers’ bill of rights began in New York in 2003 and was led by
Domestic Workers United and a number of other worker organizations. The original bill was
designed for full inclusion of all domestic workers in New York, including minimum wage,
overtime protection as well as anti-discrimination protections and to win a number of additional
protections that are not normally guaranteed to workers, whether that be health insurance, sick
leave, vacation time, and other important protections. Many of these more expansive provisions
were cut from the bill during negotiations, but over time and by 2010, NDWA helped create a
stronger bill in New York. There are a number of other states where NDWA has advanced a state
domestic workers’ bill of rights, such as the bill of rights passed in Hawaii, which advanced the
definition of domestic workers, minimum wage, and overtime protection. This was possible
through the efforts of organizing domestic workers and partnering with the legislature to pass an
expansive bill, and it helped create more momentum for similar policies in municipal and state
governments across the country.
Ms. Rodgers stated that the first step is striking some of the legal exemptions that have existed
historically. In every state, it is important to look at where in the statute, code, or regulation
domestic workers are explicitly excluded; some of those were addressed in the 2020 legislative
session when it came to minimum wage in Virginia. She pointed out that there are many
instances where domestic workers are named expressly as excluded from a protection, and there
are other areas where, based on the size of the workplace, domestic workers are excluded, for
example, a workplace needs to be five or more workers. Additionally, she said we need to look at
how the state and local law intersects with federal policies that also oversee workers’ rights.
Ms. Rodgers noted that NDWA advocates for the most expansive definition of domestic
workers. Many state laws track the Federal Labor and Fairness Act, which usually excludes
domestic workers who are live-in domestic workers, companions, or casual workers, such as the
person who may do maintenance at a home. NDWA wants to ensure that they are creating the
most expansive definition as possible so that the most domestic workers can be included.
NDWA’s preferred definition Ms. Rodgers is in the Seattle domestic workers’ bill of rights. That
bill had the broadest definition thus far; it included live-in domestic workers, as well as
independent contractors and temporary workers, among some others.
Ms. Rodgers pointed out the unique protections that domestic workers need. Many of their
domestic workers’ bill of rights have included an industry standard provision, such as paid time
off and requiring notice for termination of work if you are a live-in employee. There is also the
need to create a standard employment agreement. Many people who are live-in care workers may
be called upon to do more than what is in a job description; Ms. Rodgers stated that this can lead
to exploitation on the job, such as no standard scheduling or the ability to take time off. She said
that having the requirement that live-in care workers be entitled to time off and, specifically 24
hours off in a seven-day period, is an important protection to advance. She noted that ensuring
there are clear standards for privacy in the home where you are working and the ability to cook
and use the kitchen facility is important. Ms. Rodgers said that by advancing some of these
provisions, we are making sure that we are highlighting issues that may lead to exploitation and
trafficking in other ways, so if we are able to report complaints about issues of exploitation it
could help prevent larger issues of labor trafficking in Virginia and across the country. It is also
13
important to look at whether these protections are feasible when it comes to enforcement and
how they intersect with federal policy.
Ms. Rodgers said that enforcement of workplace standards can be very challenging when the
workplace is a private home. It is important for domestic workers to be able to register
complaints and track them in an accessible way so that if there are issues of harassment,
discrimination, safety, or other issues on the job, that they have the same protections as the
worker in a restaurant or office. There are examples in other states where partnerships were
created to help co-enforce the policies by working with local governments and nonprofit
organizations that serve either domestic workers or families who employ domestic workers. She
emphasized the importance of partnering with companies and agencies that employ domestic
workers to ensure that everyone is as educated as possible about changes, whether it’s workers’
compensation or other standards that regulate the industry.
Ms. Rodgers said that to expand health, safety, and workers’ compensation coverage, we need to
look at closing the legal loophole where domestic workers are excluded. She stated that making
workers’ compensation mandatory for all workers regardless of employment classification is
important as many domestic workers are often misclassified as independent contractors. Ms.
Rodgers stated that it is important that domestic workers are able to seek out compensation for
injuries when they do occur. She commented that this is an area where it is very important for
state and local governments to partner with other domestic worker collectives or domestic
worker companies to make sure there is a broad awareness of what is required from homeowners
or employers of domestic workers.
Ms. Rodgers commented that she appreciated Dr. Healy sharing a little about the work on
portable benefits and the future of work. Senator Warner has been working on this at the federal
level. She believes it is good to hear the plight of gig workers in our economy, and she often
shares that the domestic worker is the original gig worker when it comes to the fact that so many
domestic workers are managing multiple clients and jobs and do not have access to the safety net
that other workers enjoy. NDWA has advocated for policies that require the state or local
government to develop a way to have portable benefits for domestic workers; she believes this
would be a model that benefits all workers. The Seattle bill of rights did require its wage and
standard board to develop a system, and that is an important tool to make sure workers have
access to benefits but also so that clients can easily make contributions to that system.
Ms. Rodgers believes there are many families of domestic workers who would love to be able to
provide those benefits to the women they employ, but it can be difficult for the employer if there
is not a handy tool or system in place. In 2018, NDWA launched an app called Alia, an online
platform that allows clients of house cleaners to make contributions to the app, and cleaners can
then use the contributions to purchase benefits such as paid time off, insurance, life insurance,
etc. She shared a quick video about the Alia app.
Ms. Rodgers commented on the explicit impact of the coronavirus on domestic workers. She
believes that of everyone impacted by this pandemic, domestic workers are among the hardest
hit. In order to stay safe, many families immediately asked their care workers not to come to take
care of their children or elderly family member; to limit interaction with people, families chose
14
not to have someone clean their homes. Unlike many employees given paid time off or
furloughed with some kind of pay or notice, many domestic workers were immediately without a
paycheck, without clients, and as many were women of color, at a higher risk of contracting the
virus. Ms. Rodgers commented that she appreciates the state’s work on adopting temporary
standards for employees.
Nicole Riley, National Federation of Independent Businesses
See Appendix G for presentation
Nicole Riley is the Virginia State Director for the National Federation of Independent Business
(NFIB), which represents approximately 6,000 small businesses in the Commonwealth. NFIB
represents a wide range of employers, including those who work in the domestic service
industry.
Ms. Riley pointed out that the federal definition of domestic service work is somewhat broad,
and asked if one definition is appropriate for all industries since domestic service covers a wide
range of services—home care, healthcare, companion care, and childcare, and each of those has
its own set of standards and challenges. Ms. Riley added that business owners become confused
with the layering of state and federal rules and how to know which rules to play by.
Most of Ms. Riley’s members operating in the domestic service space are third party employers,
such as Molly Maids. Most of these businesses treat their workers as employees as defined by
federal and state laws; they pay overtime and minimum wage and often offer benefit packages,
including health insurance and paid time off, and follow the laws regarding worker’s
compensation, withholding taxes, and paying unemployment taxes.
The other employer in the domestic service space is the individual consumer-client, which is
where a lot of the market operates. This employer is the individual who hires a nanny, a home
care companion, or a housekeeper. Typically, this domestic service worker is self-employed and
may have set up a business, has a license, is paying income taxes, purchasing her own health
insurance, and following all the laws. Ms. Riley stated the common practice in this setting is that
the consumer-client does not provide benefits as they assume this domestic service worker has
other clients, this is the worker’s business, and it is the worker’s responsibility to provide her
own benefits and conduct the business in accordance to the law. She pointed out this is not
always the case as much of the payment for this work is done “under the table.” There is
confusion and as well as precedent in the market that makes applying protections for these
workers difficult, especially as the vast majority of domestic service workers are self-employed.
Ms. Riley noted some concerns small businesses would have with the possible implementation of
a domestic service workers’ bill of rights, which was discussed in the first work group meeting
by Alexsis Rodgers. The first concern of small businesses is the cost that additional regulations
will bring; new regulations will require them to spend more time on recordkeeping, and requiring
small businesses to provide paid time off, health insurance, worker’s comp, etc. is costly and
may not be sustainable for the business or the market. A business may have the flexibility to put
together a package that attracts good, dependable, trustworthy employees using those benefits as
an incentive. She believes employers worry that if there is a mandate that includes additional
15
regulations, it will become a cost issue, and increased costs decreases profit, forcing them to pass
that cost on to customers.
She touched on the need to educate employers and employees on current best practices, and there
needs to be a mechanism to educate them. Domestic service workers should know how to run a
business, how the rules and regulations apply to them, and how to implement them.
Ms. Riley touched briefly on protections such as insurance. Virginia recently allowed a self-
employed person to be a business in order to qualify for the small group health insurance market.
She mentioned there could be a way for self-employed persons to pay into a “system” like
worker’s compensation or unemployment, so that if something happens, they are in the system,
and then can get benefits. The self-employed worker then incorporates those costs into their
business plan and recovers the costs from the customer-client.
Seyoum Behr, Virginia Department of Social Services’ Office of New Americans
See Appendix H for presentation
Seyoum Behr is the Virginia Refugee State Coordinator and Director of the Office of New
Americans. Mr. Behr gave an overview of the Office of New Americans, previously called the
Office of Newcomer Services, which is just getting up and running and now focuses on
immigrants from all walks of life, not just refugees. The office is 100 percent funded by the
federal government, and the mission is to assist refugees with integrating into existing
communities in Virginia. Mr. Behr spoke of the numerous challenges faced by immigrants and
refugees alike, which includes something called ‘triple trauma’—the country an immigrant
leaves, the country(ies) the immigrant passes through, and finally this country. Other challenges
include tradition, orientation, language, education, and lack of resources. Mr. Behr shared the
Office of New Americans Immigrant Services Plan, which focuses on organizing resources so
they can best serve immigrants. Mr. Behr stated that discussions with stakeholders have included
looking into the unmet needs of immigrants. An example is Virginia 211, which is a phone
number people in Virginia can dial that will connect them to health and human services in
Virginia; there is only one Spanish speaker answering calls, and Mr. Behr estimates there are
600,000 people who speak Spanish in Virginia.
The office is working with stakeholders, service providers, law enforcement, and immigration
providers on matters related to employment because the best way to integrate into American
society is to become self-sufficient. Mr. Behr shared that over 80 percent of his refugees become
self-sufficient within a year or so, and he hopes to bring those same results to our immigrant
population. Mr. Behr understands that those who do not have legal papers have additional
challenges, and there is a need to see what can be done, within the law, to make sure all available
services and information is shared with the immigrant population.
He reiterated the need for providing English language education and providing information on
immigration laws. Mr. Behr stated that the U.S. is different from most because even if you do not
have legal papers, you have certain basic human rights that are protected. He wants to make sure
that we stay within the principle of an individual having rights and that the immigrant population
knows their rights and responsibilities.
16
Angella Alvernaz, State Trafficking Response Coordinator, Virginia Department of
Criminal Justice Services
See Appendix I for presentation
Angella Alvernaz is the State Trafficking Response Coordinator for the Commonwealth of
Virginia and is based within the Virginia Department of Criminal Justice Services (DCJS). The
human trafficking response in Virginia started in stages in 2010-2012, some at the state level and
some at the local level. The most recent large body of legislation was during the 2019 legislative
session and that included the establishment of her position. The overall goal of her position is to
bring a consistent, collaborative, multi-disciplinary response to how we work with human
trafficking cases throughout the entire Commonwealth. This includes stopping the supply,
stopping the demand, and working with the victims who are exploited.
Ms. Alvernaz explained that DCJS supports trafficking victims by creating a consistent response
protocol for human trafficking. Currently, the focus is on sex trafficking because when this
position was established, it was written to begin with sex trafficking. Ms. Alvernaz made it clear
that she will work toward labor trafficking as well. She shared some of the other ways she and
DCJS are supporting trafficking victims, including training providers and other professionals to
assist those who have been exploited, creating standards and protocols for treatment facilities,
working with State Advisory Groups and task forces throughout the state, developing resources,
and maintaining a resource guide of providers serving trafficking victims. She also shared
information about the two state advisory groups, the Anti-Human Trafficking Coordinating
Committee and the State Child Trafficking Work Group, which will be realigned this year to
work in a more integrated fashion. Additionally, there is a human trafficking task force in every
area of the State.
Ms. Alvernaz advised the group that there are not many existing services to assist domestic
service workers, only a couple of legal services in Virginia and the Human Trafficking Legal
Center in Washington, D.C. Currently, there are no other service providers or NGOs working
specifically on workers’ rights within the domestic services field; there are NGOs working on
labor trafficking for undocumented or under documented immigrants.
Ms. Alvernaz gave some brief recommendations. She stated that DOLI should be the key agency
to work on some sort of bill of rights for the domestic service workers and labor standards for the
workers and the organizations that employ them. She plans to add a subcommittee to the State
Trafficking Advisory Group that will work on labor exploitation and labor trafficking. This
subcommittee would work on all forms of labor trafficking, not just domestic service, and work
with all individuals regardless of their documentation status. Her framework for domestic
workers would include (i) creation of a workers’ bill of rights, (ii) specific labor standards for
domestic service workers, (iii) training for domestic service companies and placement agencies,
(iv) create required courses for families who will be directly hiring nannies, au pairs, maids,
cooks, etc., and (v) establish a hotline for workers to report abuses. For families hiring domestic
service workers, Ms. Alvernaz suggested contacting existing organizations (such as Care.com)
that might be willing to offer information as to Virginia’s rules and regulations for employing a
domestic service worker.
17
Appendix A: First Meeting Minutes
Domestic Service Employees Work Group
August 31, 2020, 3:00pm
The first meeting of the Domestic Service Employees Work Group was held via Google
Meet/Conference Call on Monday, August 31, 2020 at 3:00pm. All members of the work group
were present as follows: Brian Ball, Megan Healy, Valerie Braxton-Williams, Stacy Maher,
Robert Field, Jim Szablewicz, Ingrid Vaca, Marta Sanchez, Jen Jackson, Michelle Lane and
Jason El Koubi. Staff members present included Turner Widgen, Meaghan Green, Cathy
Stephens, and Connor Andrews. Also present by invitation were Senator Jennifer McClellan and
Alexsis Rodgers with the National Domestic Workers Alliance.
Additional persons present included Annette Phaeffle and Lizbeth Rodriguez (translators),
Antonia Pena and Alexa Malishchak with the National Domestic Workers Alliance, and Maryn
Wood, Legislative Aide to Senator Jennifer McClellan. Also participating with Michelle Lane of
Middleburg Homecare was Amanda, one of her personal care assistants.
Secretary Brian Ball welcomed the group and thanked everyone for attending. Secretary Ball
thanked Senator Jennifer McClellan, the bill patron on Senate Bill No. 804, for attending.
Secretary Ball pointed out that SB 804 was a great achievement after many years of work to
address the exception of domestic service workers from receiving the minimum wage. There
were other aspects of Senator McClellan’s bill that did not get addressed and the purpose of this
work group is to look at some of those other aspects. The Administration is to file a report in
early November.
Secretary Ball asked Senator McClellan to give her thoughts on some of the remaining
unaddressed items that the work group will be looking at.
18
Senator McClellan welcomed and thanked everyone for participating. She offered a high-level
perspective of why this bill was introduced and why this work group is so important. It has been
a 401-year journey to value the role of the domestic service worker which historically was
performed without pay by enslaved women, for the most part but not exclusively. After
emancipation, for many woman of color, domestic work was the only work available. When the
worker rights movement of the progressive era put many of the laws we are addressing today in
place, those Jim Crow jobs were excluded. Many of those jobs have been removed, but domestic
work has not. Domestic service workers are the fastest growing workforce in the country. In
Virginia, there are over 60,000 domestic service workers, over 90% are women and over half are
women of color. Senate Bill No. 804 was the first bill anywhere in the South that passed
extending any worker protections to domestic service workers. Senator McClellan pointed out
that giving domestic service workers the ability to earn minimum wage is important but there are
other worker protections that should be addressed, specifically discrimination, loss of a job, and
getting hurt on the job. What complicates this issue is that most of the domestic service workers
work in the home. She shared with the group that there was just not enough time during the
2020 Session to work through all the unintended consequences or addresses some of the
differences between domestic work in the home and elsewhere. Senator McClellan stated that
domestic service workers allow other workers to leave the home knowing that someone is caring
for their children, elderly family members, cleaning, and cooking. She emphasized the need to
ensure that these workers should be extended worker protection so that they can take care of their
own families.
Following, Secretary Ball asked the work group members to introduce themselves. After quick
introductions by the staff and each work group member, Secretary Ball reminded everyone that
SB 804 took out the exception for minimum wages for domestic service workers, and as Senator
McClellan said, is something to be quite proud of for all involved in the passing of this
legislation.
A component of the bill requires the Secretary of Commerce and Trade to convene this work
group. Secretary Ball told the group that he and Dr. Healy work together on all labor-related
issues. This group is being asked to consider whether other workplace protections should be in
place, such as harassment, discrimination, non-payment of wages or not receiving the proper
wages, health, and safety. Secretary Ball mentioned other issues to consider such as, if there are
injuries in the workplace whether worker’s compensation should be available and if there is job
loss whether unemployment compensation should be available.
Secretary Ball stated that this work group is composed of people who work in the industry,
people who have employees or have employed independent contractors in the industry, as well as
representatives from several agencies. The plan is to get as much input from this group in a
series of meetings, and then the Executive Branch will write a report and have that ready by
November 1. Secretary Ball commented on the current situation with COVID-19 and that we
will not allow that to deter the group from its work.
Secretary Ball asked Dr. Megan Healy, Chief Workforce Development Advisor, to introduce the
definition of “Domestic Service Employee.” Dr. Healy thanked the group and reiterated the
importance of this topic. Virginia defines “domestic service” as “services related to the care of
19
an individual in a private home or the maintenance of a private home or its premises, on a
permanent or temporary basis, including services performed by individuals such as companions,
cooks, waiters, butlers, maids, valets, and chauffeurs.” Dr. Healy cited additional examples (see
attached slide deck) and pointed out that the home health care and personal care aides do not
provide full skilled nursing but are workers who support our loved ones who may have
disabilities or are elderly. She also pointed out that the definition does not include domestic
service workers who are self-employed or operating as independent contractors and this will
come up in this group’s discussions. Dr. Healy stated that we are seeing a shift with more people
being independent contractors and that means not having the benefits that other workers have.
Dr. Healy asked the group: Do you think this is a good definition, or how would you expand this
definition? Is there anything additional that should be added to the definition? She stated that
we have to agree on what domestic service is and what to include in our report to support this
work group.
Valerie Braxton-Williams with the Virginia Employment Commission commented on whether
the definition of domestic service worker passed in SB 804 encompasses all that is included in
Section 60.2-219(19) of the Unemployment Compensation Act:
Services provided by an individual pursuant to an agreement among the service
recipient, a public human services agency as defined in § 15.2-2811, and such
individual to an eligible service recipient in his own home or the home of the
service provider, unless coverage of such services is required by the provisions of
§ 3304(a)(6)(A) of the Federal Unemployment Tax Act;
Ms. Braxton-Williams stated that she does not believe the people hired by a services agency to
perform some of the same services are included in the definition this work group is considering.
Jim Szablewicz with the Workers’ Compensation Commission stated that by statute domestic
servants are excluded from coverage under the Virginia Workers’ Compensation Act. He
advised that the Commission’s definition is actually a little broader than the definition this group
is considering. The full definition from the Workers’ Compensation Commission, and this goes
back to a case from 1980, is frequently cited, “a person hired or employed primarily for the
performance of household duties and chores, the maintenance of the home and the care, comfort
and convenience of the members of the household.” Mr. Szablewicz points that this is a bit
broader than the care of an individual. Secretary Ball asked Mr. Szablewicz for the case citation
which is Hux v. Trust for the Benefit of Jean Roche, 59 O.I.C. [Opinions of the Industrial
Commission] 143 (1980). Mr. Szablewicz will send a copy to Secretary Ball.
Ms. Braxton-Williams made a further comment that during the General Assembly Session, a
question came up frequently that as the definition of domestic service includes the care of
individual in a private home or the maintenance of a private home, does that include the person
who comes by twice a month to cut your grass? Secretary Ball commented that some of this may
be ground covered at the General Assembly level but that does not foreclose this group from
looking at this question.
20
Dr. Healy pointed out Mr. El Koubi’s chat comment, that the definition should be modified so
that “individual” is “individual(s)”. Such as in a nanny or au pair situation, there may be
multiple children in the care of a domestic service worker.
As there was no additional discussion on the definition of domestic service, Secretary Ball
welcomed Alexsis Rodgers, State Director of the National Domestic Workers Alliance (NDWA),
to make a presentation.
Ms. Rodgers thanked the group and said she would share some of the national framework that
NDWA is advancing for domestic workers rights throughout the country. Ms. Rodgers thanked
Ingrid Vaca and Marta Sanchez for their participation.
NDWA is a national, non-profit organization and is the leading voice for dignity and fairness for
millions of domestic workers in the United States. Ms. Rodgers pointed out that domestic
workers are nannies, cleaners and homecare workers who are overwhelmingly women, and a
majority of which are women of color and immigrant women. She stated that this workforce has
largely been invisible and excluded from labor protection from the very foundation of this
country, and even as protections for other workers were established, there has been intentional
effort to exclude care workers. The work of NDWA is to bring visibility and recognition to the
value of care work and to the folks who are caring for our loved ones in our home.
Ms. Rodgers stated that domestic workers are hard to count because of the nature of the work
and so many contractual relationships are verbal and not written agreements. NDWA estimates
that 2.5 million domestic workers are here working in the United States and 60,000 in Virginia.
Their research shows that this market and this workforce is growing rapidly as folks delay
having children while also having their parents or elderly ones to care for as well. Ms. Rodgers
stated that there is increasing demand for working people to have access to affordable care.
Because of the increased demand for this care, Ms. Rodgers stated the jobs available to domestic
workers need to be good jobs so that these workers can also provide for their own families while
caring for others.
Ms. Rodgers continued stating that so many of the workforce are immigrant woman and
undocumented or in a mixed immigration status family. She commented that unfortunately in
this country, there have not been great protections for folks based on their immigration status. It
is her hope that Virginia can make sure to extend good worker protection to everyone regardless
of immigration status. Just for background purposes, Ms. Rodgers stated that the population of
domestic service workers is made up of all kinds of folks. There might be people who have
come from a different profession, and they move to the United States and their credentials are
not recognized. There are many of these folks who find themselves in positions providing
incredible care for people in Virginia and across the country.
Ms. Rodgers reminded the work group that domestic workers are excluded from many basic
rights under federal labor protections, such as basic labor and safety net protections that many
workers enjoy. She stated that as to contractual agreements, so many domestic workers may
only have a verbal agreement, not a written agreement. She stated that the basics of retirement
and health care insurance and the right to unionize are still carved out from the federal labor
21
standard. It was just this year we were able to address minimum wage pay. That has been an
historic wrong for this important workforce.
Ms. Rodgers continued by outlining the priorities for a domestic workers bill of rights across the
country and the keys areas that her national campaign tries to address. The key areas fall into
basically two categories—protect all workers and extend basis protection to everyone. This
includes eliminating those historic exclusions from our state labor and employment laws whether
that be minimum wage, overtime, workers comp, while also introducing a new model and
creating new standards for the unique nature of domestic work. She stated that we know that
because of the job that care workers are doing, they may often be working in vulnerable
situations and have unique protections that are needed to ensure that they are safe on the job.
She asked that the work group keep that background in mind as she continues.
The NDWA has advanced a state domestic workers bill of rights in a number of states across the
country. The first state campaign for a domestic workers bill of rights began in New York in
2003. It was led by Domestic Workers United and a number of other worker organizations. The
original bill was designed for full inclusion of all domestic workers in New York, including
minimum wage, overtime protection as well as anti-discrimination protections and to win a
number of additional protections that are not normally guaranteed to workers, whether that be
health insurance, sick leave, vacation time and other important protections. Many of these more
expansive provisions were cut from the bill during negotiations, but over time and by 2010,
NDWA helped create a stronger bill in New York. There are a number of other states where
NDWA has advanced a state domestic workers bill of rights, such as the bill of rights passed in
Hawaii that included privately paid nannies, house cleaners, it advanced the definition of
domestic workers, minimum wage and overtime protection. This was possible through the
efforts of organizing domestic workers and partnering with the legislature, like we are doing here
today, to pass an expansive bill and it helped create more momentum for similar policies in both
municipal and state government across the country.
Ms. Rodgers stated the first step is striking some of the legal exemptions that have existed
historically. In every state, it is important to look at where in the statute, code or regulation
domestic workers are explicitly excluded, and some of those were addressed in this last
legislative session when it came to minimum wage. She pointed out there are many instances
where domestic workers are named expressly as excluded from a protection, and there are other
areas where based on the size of the workplace domestic workers are excluded, for example, a
workplace needs to be five or more workers. Ms. Rodgers stated it is important that as we are
looking for ways to provide more domestic workers with worker protection, we need to
understand the various ways that domestic workers can be and have been excluded from
protection. Additionally, we need to look at how the state and local law intersects with federal
policies that also oversee workers’ rights.
Ms. Rodgers commented that NDWA advocates for the most expansive definition of domestic
workers as they campaign for those rights across the country. Many state laws track the federal
labor and fairness act, which usually excludes domestic workers who are live-in domestic
workers or companions or casual workers, such as the person who may do maintenance at a
home. NDWA wants to make sure that they are creating the most expansive definition as
22
possible so that the most domestic workers can be included. Ms. Rodgers stated that a definition
her organization particular likes is in the Seattle domestic workers bill of rights. That bill had the
broadest definition thus far; it included live-in domestic workers, as well as independent
contractors and temporary workers, among some others.
Ms. Rodgers pointed out there are unique protections that domestic workers need. Many of their
domestic workers bill of rights have included an industry standard provision such as paid time
off and requiring notice for termination of work if you are a live-in employee. There is also the
need to create a standard employment agreement. Many people who are live-in care workers
may be called upon to do more than what is in a job description. Ms. Rodgers stated that this can
lead to exploitation on the job, such as no standard scheduling or the ability to take time off. She
stated that having the requirement that live-in care workers be entitled to time off and,
specifically 24 hours off in a 7-day period, is an important protection to advance. Even making
sure there are clear standards for privacy in the home where you are working and the ability to
cook and use the kitchen facility. Again, these are protections that other workers do not need,
but due to the unique nature of domestic workers and their work, it is very important that they
have access to prepare their own meals and have privacy at their workplace. Ms. Rodgers stated
that by advancing some of these provisions, we are making sure that we are highlighting issues
that may lead to exploitation and trafficking in other ways, so if we are able to report complaints
about issues of exploitation it could be preventative of larger issues of trafficking, labor
trafficking here in Virginia and across the country. It is also important to look at whether these
protections are feasible as to enforcement and how they intersect with federal policy.
Ms. Rodgers continued by stating that enforcement of workplace standards can be very
challenging when the workplace is a private home. It is important for domestic workers to be
able to register complaints and track them in an easily accessible way so that if there are issues of
harassment, discrimination, safety or other issues on the job that they have the same protections
as the worker in a restaurant or office or anywhere else. She commented there are examples in
other states where partnerships were created to help co-enforce the policies, by working with
local governments as well as non-profit organizations that serve either domestic workers or
families who employ domestic workers. She emphasized the importance of partnering with
companies and agencies that employ domestic workers to ensure that everyone is as educated as
possible about changes, whether its workers compensation, or other standards that regulate the
industry.
Ms. Rodgers commented that to expand health and safety and workers compensation coverage,
we are really looking at closing the legal loophole where domestic workers are excluded and
make sure that all domestic workers are covered by these very important protections. She stated
that making workers compensation mandatory for all workers regardless of employment
classification is important for her organization as many domestic workers are often misclassified
as independent contractors. She stated that Ingrid and Marta would be able to share some of
their own experiences where workers injured on the job, and they do not have access to the same
protections that other workers injured at work have. Ms. Rodgers stated that it is important that
domestic workers, nannies, cleaners, are able to seek out compensation for those injuries when
they do occur. She commented this is an area where it is very important for state and local
governments to partner with other domestic worker collectives or domestic worker companies to
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make sure there is a broad awareness of what is required from homeowners or employers of
domestic workers.
Ms. Rodgers commented that she appreciated Dr. Healy sharing a little about the work on
portable benefits and the future of work. Senator Warner has been working on this for a while at
the federal level and this is important for domestic workers. She believes it is good to hear the
plight of gig workers in our economy and she often shares that the domestic worker is the
original gig worker when it comes to the fact that so many domestic workers are managing
multiple clients, managing multiple jobs and do not have access to the safety net that other
workers enjoy. NDWA has advocated across the country for policies that require the state or
local government to develop a way to have portable benefits for domestic workers. She believes
this would be a model that benefits all workers. The Seattle bill of rights did require their wage
and standard board to develop a system, and that is an important tool to make sure that workers
have access to benefits but also so that clients can easily make contributions to that system.
Ms. Rodgers believes there are many families of domestic workers who would love to be able to
provide those benefits to the women they employ but it can be difficult for the employer if there
is not a handy tool or system in place.
In 2018, NDWA launched an app called Alia. This is an online platform that allows clients of
house cleaners to make contributions to the app and cleaners can then use the contributions to
purchase benefits such as paid time off, insurance, life insurance, etc. It is important that the
state and local governments explore the models can be created to navigate what is an important
benefit for workers while also sometimes a challenging system for employers, even employers in
good faith, to figure out on their own. Ms. Rodgers shared a quick video about the Alia app.
Ms. Rodgers commented about the explicit impact of the coronavirus on domestic workers. She
believes that of all workers and everyone negatively impacted by this terrible pandemic,
domestic workers are among the hardest hit. In order to stay safe, many families immediately
asked their care workers not to come to take care for their children or their elderly family
member. To limit interaction with other folks, families chose not to have someone clean their
homes. Unlike many employees who were given paid time off or furloughed with some kind of
pay or notice, many domestic workers were immediately without a paycheck, without clients,
and as many were women of color, at a higher risk of contracting the virus. Ms. Rodgers
commented that she appreciates the state’s work on adopting temporary standards for employees.
Because during this critical time domestic workers are still on the front-line providing care and
making sure that as folks are returning to work, and also domestic workers are returning to work,
that they are able to do so in a safe way.
“The same workers who have been in the shades really could be the key to extending the spread
of the virus but we need to make sure that domestic workers have a chance to be a part of the
solution.” Ms. Rodgers feels this quote is fitting as this work group is studying how to bring
more domestic workers into the fold when it comes to state policies, and those voices should be
heard when making important policy changes.
Ms. Rodgers completed her presentation (see complete presentation attached) and asked Marta
and Ingrid to share their thoughts and reflections as domestic workers in Virginia for many years.
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Ingrid Vaca shared her thoughts with the group. Domestic workers have been invisible for much
of their lives. The pandemic has shown to all the world that domestic workers are essential and
indispensable workers, and it has shown their humanity. Ingrid stated that domestic workers are
at risk because they do not have the right tools to take care of themselves. Domestic workers
contribute to this country, paying taxes and buying supplies. There are bad situations. Ingrid
shared an experience when she was working in an apartment, and the owner left her supplies to
clean a bathroom. In the process of cleaning, two liquids came together and the resulting mixture
was harmful to Ingrid’s eyes. Ingrid was forced to drive herself to the hospital, pay all her own
expenses, and the homeowner did not offer to help. Also with the pandemic, many domestic
workers have not gone back to work. They are scared. It is important to the domestic worker that
other people see their humanity. Ingrid emphasized the domestic service worker is not just the
person taking care of the baby, not just the person cleaning the house, but is a human being who
needs respect and dignity.
Marta Sanchez (through a translator) also shared the importance of protection for the workers.
She, like Ingrid, had a very similar situation with a reaction to the mixture of two liquids. Marta
said there was no one to attend her and take care of her, and she had no insurance to cover
medications. The only thing they did for her was to put cold water on my head. Domestic
workers are also exposed to, not only cleaning agents, but other articles in the kitchen that can be
harmful. Marta stated that domestic workers are often in harmful situations.
Secretary Ball reminded the work group members that we will have other meetings with plenty
of opportunity for all members to offer input and comments in order to complete our report.
Secretary Ball thanked Ms. Rodgers for her presentation and Ms. Vaca and Ms. Sanchez for
sharing their experiences.
Dr. Healy gave an overview of the 2020 legislative wins, including minimum wage, wage theft,
and misclassification. Dr. Healy pointed out additional pieces of the original SB 804 legislation
including, among other things, discrimination, worker’s compensation, and unemployment
insurance. She advised the group that these are some of the issues that will guide this work
group moving forward.
Dr. Healy continued by inquiring of the work group, what should our priorities be? She stated
that she heard worker’s comp from our two workers (Ingrid and Marta). She asked the group to
be thinking about our priorities moving into the next meeting at which time we will have more
detail from subject matter experts on the pieces and parts. Secretary Ball reiterated that today we
heard from the parties who want to expand these protections. We will hear from the employers of
the domestic service workers to understand what they are currently providing these workers and
how their businesses might be impacted were these benefits to be required. Secretary Ball
assured the work group we will not hear just one perspective, but that we are going to be hearing
from a breadth of perspectives and then we will do our work following all of those inputs. Dr.
Healy added that sometimes it is not the extra expenses to the employer for the benefits, but also
whether the agencies are set up to provide benefits or pay into benefits. She advised that can be
tricky on a state agency level.
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Ms. Braxton-Williams commented that she would like to see the work group look deeper into
whether the definition of domestic service is so broad in SB 804 as to include those persons who
have a family relationship, for example a sister occasionally taking care of an elderly sister. She
pointed the group back to Section 60.2-219(19), those persons are excluded from the definition
of employment. Ms. Braxton-Williams asked that during the next meeting we should address
how to deal with that issue and not include persons who should not be included in this definition
of domestic service worker for remuneration. Dr. Healy agreed this is an issue to discuss further.
Secretary Ball asked if there were any additional items to discuss in the remaining time.
Michelle Lane with Middleburg Homecare mentioned that she has a fairly large personal care
assistant division in her home healthcare organization. Her organization pays above scale, and
Amanda actually makes $20.00 an hour as a personal care assistant. Ms. Lane is concerned that
if there are more regulations, it will change how she pays her employees. She uses a creative
model and is able to pay at a higher rate and that allows her employees to buy their own
insurance. Ms. Lane offered to expand on this today or wait for the next meeting. Secretary Ball
reiterated that we are running out of time and advised Ms. Lane that she will have an opportunity
to explain this next time. He confirmed that we need more time to flesh out that issue.
Secretary Ball continued the meeting by offering the group some of his expectations for our next
meeting. He believes the work group needs to understand from our agencies, such things as: (i)
why we have been doing things the way we do, (ii) do we need to be looking at the definitions in
a certain way, and (iii) if we are going to move toward some sort of benefits in the worker’s
comp and unemployment benefits areas, how that would look for the agencies. Secretary Ball
said that we will have ample time to raise concerns like those mentioned today by Ms. Lane.
Secretary Ball shared with the group one of his concerns. Where does a domestic worker go if
she is mistreated, either physically or emotionally (in Virginia, not on a national level)? He
wants to understand the remedies. There is an ETS on the books for workers, but what about the
undocumented worker who is not going to call the police? Where does she go to get some relief?
Secretary Ball believes this issue needs to be part of the work of this group. So apart from
benefits and wages, we should consider basic issues of what happens when somebody is
mistreated.
In closing, Secretary Ball asked if there were additional items the group wanted to include on the
agenda for the next meeting. Hearing none, Secretary Ball thanked everyone for attending and
participating, and the meeting concluded at 4:29 p.m.
Appendix B: Second Meeting Minutes
Domestic Service Workers Work Group
September 24, 2020
MINUTES
The second meeting of the Domestic Service Workers Work Group was held via
Zoom/Conference Call on Thursday, September 24, 2020 at 10:00am. All members of the work
group were present as follows: Brian Ball, Megan Healy, Valerie Braxton-Williams, Stacy
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Maher, Robert Field, Jim Szablewicz, Ingrid Vaca, Marta Sanchez, Jen Jackson, Michelle Lane
and Jason El Koubi. Staff members present were Turner Widgen and Meaghan Green. Also
present by invitation was Nicole Riley, NFIB.
Additional persons present included Annette Phaeffle and Lizbeth Rodriguez (translators),
Antonia Pena with the National Domestic Workers, Marcia Tetterton with Virginia Association
of Home Care and Hospice, and Abbey Philip with Senator McClellan’s office.
Secretary Brian Ball welcomed the group and thanked everyone for attending. He reintroduced
himself and Dr. Megan Healy and quickly recapped the first meeting of the work group.
Secretary Ball gave an outline of today’s meeting and dispensed with any further introductions.
Dr. Healy thanked everyone for participating today. She specifically thanked Turner Widgen
from Secretary Ball’s staff as well as Meaghan Green, her Special Assistant, for their
background work, research and planning for today’s meeting. Dr. Healy also thanked the
presenters for today who will talk about the employer’s side and our agency subject-matter
experts who are digging into the Code to support the work of this group. She explained we have
two Spanish-speaking members of the work group and when they speak, there will be a
simultaneous translation.
Secretary Ball then introduced our presenter, Nicole Riley, Virginia State Director for NFIB
(National Federation of Independent Business). NFIB represents small business, advocating on
behalf of America’s small and independent business owners in all 50 states and Washington,
D.C. NFIB Virginia represents approximately 6,000 small businesses. These small businesses
represent numerous industries, including retail, restaurants, construction, manufacturing,
professional services, etc. NFIB represents a wide range of employers, including those who
work in the domestic service industry. Most of the NFIB member businesses that operate in the
domestic service worker space are third party employers.
Ms. Riley acknowledged the importance as well as the difficulty the work group will have in
formulating the definition of “domestic worker.” The few states that have a domestic worker bill
of rights do not all use the same definition, and she pointed out that the federal definition is
somewhat broad. She posed the question, is one definition appropriate for all industries?
Domestic service covers such a wide range of services, home care, healthcare, companion care,
childcare, each having its own set of standards and challenges. Another issue to consider are the
services that require certifications and licenses, such as the healthcare services providers. Many
businesses owners currently rely on the federal definition and the requirements under that
definition.
Ms. Riley mentioned that the Fair Labor Standards Act was amended to include domestic
workers, and then in 2015 it was even more narrowly drawn so that those in the home care arena
were specifically addressed and were basically taken out of the definition of domestic worker. In
a sense putting it more under the Fair Labor Standards Act, so that they are held to minimum
wage requirements and overtime pay. Ms. Riley added that business owners become confused
with the layering of state and federal rules and how to know which rules to play by.
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Ms. Riley continued her presentation talking about the employer. Most of Ms. Riley’s members
operating in the domestic service space are third party employers, such as domestic service
agencies like Merry Maids or Molly Maids. Most of these businesses treat their workers as
employees as defined by federal and state laws. They pay overtime and minimum wage and
often offer benefit packages, including health insurance and paid time off. They follow the laws
regarding worker’s compensation, withholding taxes and paying unemployment taxes.
The other employer in the domestic service space is the individual consumer-client, and this is
where a lot of the market operates. This employer is the individual who hires a nanny, a home
care companion or a housekeeper. Typically, this domestic service worker is self-employed who
may have set up a business, has a license, is paying income taxes, purchasing her own health
insurance, and following all the laws. The consumer-client probably assumes the domestic
service worker is taking care of all these items for herself. Ms. Riley stated the common practice
in this setting is that the consumer-client does not provide benefits as they assume this domestic
worker has other clients, this is the worker’s business, and it is the worker’s responsibility to
provide her own benefits and conduct the business in accordance to the law. She pointed out this
is not always the case as much of this work is done “under the table.” There is confusion and as
well as precedent in the market that makes applying protections for these workers difficult,
especially as the vast majority of domestic workers are self-employed.
Ms. Riley stated that the third category of worker is the independent contractor. Most third-party
employers do not use independent contractors. They treat their workers as employees as defined
by state and federal law. She pointed out that most franchise agreements will not allow workers
to be classified as independent contractors; they must be employees.
Ms. Riley pointed out some of the concerns that small businesses would have with the possible
implementation of a domestic workers bill of rights. Additional regulations may contradict
current requirements that employers must meet or even duplicate requirements. The first
concern of small businesses is the cost that additional regulations will bring. New regulations
will require them to spend more time on recordkeeping, and most small business owners do their
own recordkeeping. She stated that requiring small businesses to provide paid time off, health
insurance, worker’s comp, etc., is costly and may not be sustainable for the small business, or the
market. Ms. Riley reminded the work group that we heard from an employer on the work group
whose business has found creative ways to provide higher pay and benefits. A business may
have the flexibility to put together a package that attracts good, dependable, trustworthy
employees using those benefits as an incentive. She believes that these same employers worry
that if there is a mandate that includes additional regulations, it will become a cost issue.
Increased costs decreases any profit the small business may have forcing them to pass that cost
on to their customers.
Ms. Riley continued by wondering how additional regulations will be enforceable. State
agencies may need additional resources to enforce new regulations and that requires additional
funding. Another concern is enforcement in a market where the large majority of the work is
conducted on an individual-to-individual platform.
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Ms. Riley also pointed out the need to educate employers and employees on current best
practices. Since most of the domestic service workers are self-employed, there needs to be a
mechanism to educate them. There should be resources to help them to put together a business
plan and learn how to negotiate with clients. The workers should know how to run a business,
how the rules and regulations apply to them and how to implement them.
Ms. Riley touched briefly on protections such as insurance. Virginia has recently allowed a self-
employed person to be a business in order to qualify for the small group health insurance market.
She mentioned there could be a way for self-employed persons to pay into a “system” like
worker’s compensation or unemployment, so that if something happens, they are in the system
and then can get benefits. The self-employed worker then incorporates those costs into their
business plan and recovers the costs from the customer-client.
Ms. Riley stated that with the exemption for domestic service workers for minimum wage, there
will need to be time for implementation. We need to see what the challenges for employees and
clients will look like. Will there be a lack of enforcement at the state level? For instance, will
the department of labor start to get complaints that employers are not paying minimum wage.
Ms. Riley concluded her presentation (complete presentation attached) and asked for questions.
Secretary Ball thanked Ms. Riley for her overview and stated in the interest of time we should
keep moving along with our other speakers and take questions at the end if there is time.
Secretary Ball introduced the next presenter, Jen Jackson, owner of River City Cleaning, and
thanked her for her time.
Ms. Jackson began by stating that her business, River City Cleaning, is an ecofriendly cleaning
company working in the residential space. Her customers are mostly regular clients that the
company services every couple of weeks. She has been in business for 12 years and employs
about 12-14 people. Ms. Jackson stated that they offer a safe working environment by using
nontoxic, ecofriendly products. Her company provides workers compensation and liability
insurance, and offers a 401(k) with a company match. Unfortunately, her company cannot afford
to provide health insurance to her employees. She stated that her company does health
mentoring. In the beginning, River City Cleaning was a bicycle run company with emphasis on
staying physically active. As they have moved away from the bicycles, the company continues
to educate its employees on self-care and wellness. Ms. Jackson stated the company offers
frequent advancement opportunities by having quarterly evaluations and rewarding the staff with
pay increases for meeting performance requirements.
Ms. Jackson continued by stating that she would like very much to do more for her employees
such as providing health insurance. She believes that the better her staff is cared for, creates a
family atmosphere that flows into the services River City Cleaning provides to its clients. The
challenge for the company would be the need to increase their rates to clients, in order to pay
minimum wage and offer additional benefits. Ms. Jackson stated that an employer should offer
continuous appreciation and acknowledgement to its employees for the services they perform.
Additionally, she appreciates when her clients express that appreciation as well.
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As to the issue of workers feeling unsafe in a client’s home, Ms. Jackson commented that
fortunately that has not been an issue in her experience. Her policy is that if an employee feels
unsafe, the employee would contact the office and a supervisor would immediately come to the
client’s home.
Secretary Ball asked Ms. Jackson to clarify her market area. River City Cleaning works mostly
in Richmond City, as far as Churchill the west end, and not much farther north than Ashland and
south to about Midlothian and Chester. Secretary Ball thanked Ms. Jackson and continued the
meeting by welcoming Michelle Lane.
Michelle Lane is a masters-prepared, registered nurse and owner of Middleburg Homecare. Ms.
Lane began by telling the work group that she had worked all night because her company has
many new referrals. She credits the amount of work they receive to the fact that she pays her
employees above scale. Her company has great employees who are consistent and do not miss
work which is so important when providing personal care services. Ms. Lane stated that she
makes sure that all her employees feel safe in the homes they service.
Ms. Lane also commented that since Middleburg Homecare pays their employees well, personal
care assistants can make up to $20 an hour, the worker is then in a better position to purchase her
own health insurance. This model proves that her company can use the market, provide a great
service and pay above scale, and it should show other companies they too can provide excellent
care, have their company sought after and allow their employees to have extra money and
freedom to make their own choices such as purchasing health insurance. Ms. Lane stated that
Middleburg Homecare pays workers compensation and liability insurance for its employees.
Answering Secretary Ball’s question, Ms. Lane stated that her company employs approximately
30 people, including registered nurses, license practical nurses, one physical therapist, one
masters prepared social worker and one occupational therapist. Secretary Ball thanked Ms. Lane
and continued the meeting by welcoming Jason El Koubi.
Jason El Koubi is an au pair employer but considers himself part of a host family. Mr. El Koubi
stated that the au pair program has been a wonderful experience for his family as they have
hosted four au pairs over the past five years. Mr. El Koubi explained the au pair program in the
United States. An au pair lives with and is an equal part of the family, not just an employee. The
au pair shares in the housework of the family, caring for the children, cooking, cleaning for the
children, and teaching good habits. Cultural exchange is encouraged through language and food
customs. An au pair receives a monetary allowance for personal use, but the host family covers
many of the basic needs. Au pair arrangements are subject to federal regulations and the program
was enacted in the United States is 1989. Mr. El Koubi estimates there is likely between 500-
1,000 au pairs living in Virginia. The program is implemented through au pair organizations that
follow the guidelines of the U. S. Department of State. Mr. El Koubi shared some of the rules
and requirements of the program.
Mr. El Koubi continued by outlining the many requirements that a host family must meet.
Secretary Ball interjected and asked Mr. El Koubi to offer information as to who is the employer,
how the au pair is compensated and are benefits provided. Mr. El Koubi stated that he thinks of
30
himself as the host family but technically, he is the employer. As a host family, Mr. El Koubi
pays the agency a fee of approximately $9,500 a year to be in the program. Additionally, the
host family is required to pay the au pair a weekly stipend of at least $195.75 and contribute at
least $500 towards the educational allowance. The direct cash cost to the host family is
approximately $20,000 with approximately half of that amount going to the au pair organization-
agency. He stated that in addition to the direct cash costs, there is also the cost of supplying a
bedroom, at least three meals a day, a telephone and transportation as it relates to care of the
children. The $9,500 agency fee is used, in part, in the selection process, for administrative
support from the agency, roundtrip transportation for the au pair between their home and the host
family, orientation and training for the au pair in advance of a placement, a special au pair visa,
basic medical insurance and personal liability coverage, as well as cultural workshops and online
resources.
Mr. El Koubi stated that this program is such a great experience for his family because the
federal framework and agency capabilities allows the family to focus on the personal relationship
and not so much on the employer-employee relationship.
In conclusion, Mr. El Koubi stated that there are many resources, benefits and protections
provided for the au pairs by the federal framework and the agency. He pointed out that
successful implementation of the program, especially the protections, seems to depend
significantly on the local childcare consultant that represents the agency. Mr. El Koubi stated
that to the extent changes are considered to the employment side of the program, he would
recommend the handling of any changes be through the agency. This would allow the host
family to maintain the family relationship, cultural exchange and personal side of the program
while ensuring that resources and protection are delivered through the agency.
Secretary Ball thanked Mr. El Koubi for his presentation and asked for any questions.
Ingrid Vaca commented that while the au pair program can be an enriching experience for some,
it can be dangerous and abusive for others. She expressed concerns that au pairs can be exploited
as slave labor and do not have adequate protections. Mr. El Koubi said that understood that she
highlighted some of the abuses that occur in the au pair program. He acknowledged that he had
read reports similar to those mentioned--where au pairs are in situations where the families abuse
the program and do not comply with the weekly hour limit, require au pairs to buy their own
food, and generally put the au pairs in situations akin to slavery. He acknowledged there are
problems and abuses as reported in the media. He recognized there are opportunities to improve
what has happened in certain circumstances.
Secretary Ball thanked Mr. El Koubi for his comments and stated that at a later meeting the work
group will address the issue of how to deal with workplace abusive situations for domestic
service workers, including au pairs. Marta Sanchez echoed Ingrid’s concerns about the au pair
program and the abuses that some participants face when not adequately protected.
Dr. Megan Healy continued the meeting asking Ms. Lane as related to personal care attendants
and Medicare and Medicaid reimbursement rates that you must deal with, how can you pay your
people so well? Ms. Lane declined to respond to the question not wanting to get into her
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business accounting. Ms. Lane did request that an item be placed on the agenda for the next
work group meeting. She would like to discuss some kind of protection for companies, like
home healthcare companies such as her company. Her company is required to make sure the
people have legal status in the U.S., and she has faced retaliation from some who were angry
when she tried to comply with this requirement.
Secretary Ball continued the meeting by welcoming Valerie Braxton-Williams and thanking her
for her hard work during the COVID-19 crisis and for being a part of the work group.
Ms. Braxton-Williams is a Confidential Assistant for Policy and Legislation with the Virginia
Employment Commission. She worked in policy for several years for a former member of the
General Assembly. Ms. Braxton-Williams briefly explained unemployment compensation as
temporary, partial wage replacement for workers who have lost their jobs through no fault of
their own. It is an eligibility-based program, not an entitlement program. Claimants must meet
various monetary and non-monetary eligibility requirements in order to be found qualified to
receive unemployment compensation benefits.
Ms. Braxton-Williams continued her presentation discussing Senate Bill No. 804 and the
proposed amendment to Section 60.2-215 where the definition of “domestic service” is re-
defined. Currently if you look at Section 60.2-215 and you look at the amendments, you see that
many people who are now exempt as being included under domestic service, that exemption is
being removed with the amendment, and the definition becomes broader. Continuing
Ms. Braxton-Williams stated that when talking about domestic service meaning service related to
the care of an individual in a private home or the maintenance of a private home, local college
club or local chapter of a college fraternity or sorority, if you look at those two categories of the
care of an individual and maintenance of a private home, then you are not just talking about the
people who actually provide care for a family member, you are getting into people who provide
services such as gardeners, maintenance workers around your home, and other people who may
not necessarily work in the home but do provide some type of service outside the home. Also, in
Section 60.2-215 the amendment removes the $1,000 threshold. Currently, employers report
wages to VEC every quarter that they pay their employees, and if a person pays an employee a
minimum of $1,500 in any calendar quarter, they must establish an account with VEC to report
the wages that they paid and pay taxes on those wages. That is how unemployment insurance
benefits are paid. However, Publication 926 of the Federal Unemployment Tax Act allows VEC
to set that minimum at $1,000 for household employees. If the amendment in 215 were to stand
and you remove that $1,000 wage requirement, you are actually raising the threshold which
means that now household workers or domestic workers would have to meet the standard that is
set in 60.2-210 that says that employers must report wages to VEC if they pay $1,500 in a
calendar quarter.
Secretary Ball interjected to seek clarification. He said to Ms. Braxton-Williams, you have been
referring to Section 60.2-215, Senate Bill 804 defines domestic service in Section 40.1-28.9.
Secretary Ball asked Ms. Braxton-Williams if the definition in Section 40.1-28.9, the current
definition, is that what she is referring to that would expand eligible employees to receive the
minimum wage to gardeners and maintenance workers, people not necessarily working inside the
home. Ms. Braxton-Williams responded, basically, she is looking at the coverage under
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Title 60.2, and the changes in subsection 215 and how they relate to 60.2. She stated that there is
another definition in Senate Bill 804 that is proposed under 65.2-101 that says domestic service
means services related to the care of an individual in a private home or the maintenance of a
private home or its premises on a permanent or temporary basis, including services performed by
individuals such as companions, cooks, waiters, butlers, maids, valets and chauffeurs. So again,
you are expanding the definition in more than one place in the amendments to Senate Bill 804.
Secretary Ball replied, thank you for that. Ms. Braxton-Williams continued, but I want you to
understand that removing the $1,000 threshold for employers to report to VEC if they pay
domestic service workers $1,000 in a quarter, if you remove the $1,000, it means they will not
have to report until they have paid $1,500 in a quarter. She commented that this is one of the
issues that she shared with the patron of the bill during the past session is the collateral impact of
removing the $1,000 threshold.
Ms. Braxton-Williams continued by stating that in order for VEC to determine eligibility for
unemployment benefits, there is a benefit table in the Code under 60.2-602 and VEC uses that
benefit table to determine the benefit range that is currently $60 at the minimum to $378
maximum. In order to be eligible for unemployment insurance, the worker must have at least
$3,000 in wages in their base period. VEC cannot go below the $3,000 to determine benefits.
Ms. Braxton-Williams commented that in conversation with some of the advocates during the
session they wanted to lower the benefit amount that domestic service workers would need to
have, but VEC cannot hold the domestic service worker to a different standard and have a lower
base period wage for them than they do for all other classes of workers.
In summary, Ms. Braxton-Williams stated that removing the provision paid of $1,000 in a
calendar quarter would raise the earning threshold to $1,500 for a calendar quarter. She
continued by stating that domestic service workers are subject to the same base period wage
requirement as all other workers. She believes one of the bigger concerns is that those
exemptions that are removed in 60.2-215 in Senate Bill 804 would impact 60.2-219 and cover
people who are hired by the human service agencies. Those workers would now be classified as
domestic service workers and that is a big concern. The definition being so broad of what a
domestic service worker is would include your gardeners and other people who perform services
just on the premises of your house. For example, you hire someone to come in once a month to
clean your house; you hire someone to cut your grass; you hire someone to come over and wash
your windows; all of those are now included under this expanded definition of domestic service.
If a person hires those three people and they come once every quarter, but what they paid those
people equals that $1,500 minimum, they would now have to establish an account with the VEC
and they would have to pay taxes on the wages that they paid those three people. Secretary Ball
commented that these were very helpful examples and thanked Ms. Braxton-Williams. This
concluded Ms. Braxton-Williams’ presentation (complete presentation attached).
Secretary Ball thanked Ms. Braxton-Williams and then welcomed Mr. Robert Feild. Mr. Feild
explained that the occupational safety and health side of DOLI is to protect employees from
injury such as the mixing of chemicals that was described at the last work group meeting, and to
provide protection from falls and other hazards that might be in a workplace. He pointed out
there are anti-retaliation provisions if someone is discriminated against or fired for bringing up a
safety and health complaint. Mr. Field continued by describing some of the DOLI programs.
33
The only programs that would have implications under the new definition under SB 804 would
be payment of wage and occupational safety and health. As to the payment of wage, DOLI has a
new anti-retaliation provision.
Mr. Feild stated that in order to have occupational health and safety enforcement there must be
an employer-employee relationship. The current definition is, one engaged in business, and there
are arguments to be made that hiring someone to work in a home does not make it a business.
The objective of VOSH is to protect employees, so they tend to define things broadly. Mr. Feild
posed the question, if an individual hires a home healthcare worker or cook, is that person a
business. If it is a business, he pointed out that VOSH has limited resources to inspect a
homeowner or individual. Most likely then, the only way for a home situation to come under
VOSH enforcement would be through a complaint. There are several ways to make a complaint
and a number of ways for the complaint to be investigated and resolved.
Mr. Feild stated that some potential issues with the complaint process and investigation may be
the employer named in a complaint will say it is not a business. The other problem is that a
complaint must show employee exposure and employer knowledge. VOSH has had some
experience with opening investigations involving a private individual-employer, but they do not
have on record any complaints or inspections in a private home related to home healthcare or
personal services. They have done inspections of the home healthcare companies.
Mr. Feild pointed out that the anti-retaliation statute states that no person can discharge or
discriminate against an employee for making a safety or health complaint or exercising rights
under VOSH. For example, in a situation where an individual is working for an individual, and
as we heard before the worker is injured by the chemicals, the worker may make a complaint to
VOSH. It does not matter in this situation that the employer is not a business.
Mr. Feild stated that when the definition includes, engages an individual to perform domestic
service, it will be clear that VOSH can respond to all complaints from domestic service workers.
Some of the impacts from this would be an employer may be required to train, supervise and
provide PPE to an employee.
At this point in Mr. Feild’s presentation, Secretary Ball interrupted and thanked him and asked if
we could hear the remainder of his presentation at the next meeting. Mr. Feild made one last
comment that the main issue for VOSH is going to be looking at a joint employer situation. We
will need to understand whether “engage” means that both the homeowner who hires a service
worker and the service-agency that provides the service worker are joint employers. Mr. Feild
concluded his presentation at this time having reached page 10 (complete presentation attached).
Secretary Ball then asked Mr. Jim Szablewicz to speak to the group. Mr. Szablewicz is with the
Virginia Worker’s Compensation Commission. As a judicial officer for the Commission, he
began his presentation with a legal disclaimer (complete presentation attached).
Mr. Szablewicz stated that currently “domestic servant” is not defined in the Virginia Workers’
Compensation Act (the “Act”). As Mr. Szablewicz explained to the work group in our first
meeting, in 1980 in the case of Hux v. Trust for Roche, the Commission adopted the definition of
34
domestic servant as: “a person hired or employed primarily for the performance of household
duties and chores, the maintenance of the home, the care, comfort and convenience of members
of the household.”
Mr. Szablewicz stated that Va. Code Section 65.2-101 specifically excludes by name “domestic
servants” from the definition of employees covered by the Act. He added that even if this
specific exclusion was not included in the Act, there are two other broad exclusions that would
exclude most domestic servants under current law. These two broad exclusions are (i) persons
whose employment is not in the usual course of the trade, business, occupation or profession of
the employer and (ii) employees of any person, firm or corporation that regularly employs less
than three employees in the same business. Section (ii) is essentially a small business exclusion,
meaning even if the domestic servant’s employer is engaged in the domestic service business, the
domestic servant would not be covered unless that employer had three or more domestic servants
regularly employed.
Mr. Szablewicz continued by stating that SB 804 as originally proposed would amend Section
65.2-101 to remove the specific exclusion of domestic servants from the coverage of the Act. SB
804 would also establish a statutory definition of domestic servant that Mr. Szablewicz believes
is a bit narrower than the Commission’s definition as the Commission’s definition includes
convenience, comfort and care.
Mr. Szablewicz stated that SB8 804 would remove the general exclusion of employees of
employers who regularly have in service less than three employees. Mr. Szablewicz points out
that takes away another exclusion.
Mr. Szablewicz stated that SB 804 as originally drafted would not remove the exclusion of
persons whose employment is not in the usual course of the trade, business, occupation or
profession of the employer. Unless a domestic servant’s employer is engaged in that business,
domestic servants still would not be covered. Mr. Szablewicz believes the failure to take away
that exclusion would, as a practical matter, exclude most domestic servants from coverage under
the Act even with that bill’s adoption because most employers of domestic servants are
homeowners and very few of them are in the business of domestic service.
Mr. Szablewicz stated that a big challenge for him is who pays. Mr. Szablewicz explained that
workers compensation benefits are not State benefits. The funds are not publicly funded or paid
and the Commission does not pay benefits. This is a private insurance system. Employers are
required by law to obtain workers compensation insurance to cover their employees. Mr.
Szablewicz continued by explaining several aspects of the workers compensation system, options
for coverage and penalties (see presentation). He pointed out that SB 804 does not address
insurance coverage, so he believes that employers of domestic servants would be required to
purchase workers compensation insurance for their domestic servant employees and would be
subject to the same penalties for failure to insure just like any other employer.
Mr. Szablewicz continued by pointing out that most employers of domestic servants are
individual households, and not businesses. With SB 804 they would be required to purchase
workers compensation insurance for their domestic servants. As written, that would include the
35
teenagers you hire once a week to cut your grass and babysit your children. He does not know
the cost but wonders if most households could afford to purchase workers compensation
insurance. Mr. Szablewicz pointed out that even if they could afford it, how would homeowner-
employers be made aware of the requirement to purchase insurance. As the bill is currently
written, the homeowner would also be subject to the penalties and enforcement actions imposed
by the Code. The Commission has the enforcement responsibility, but how do they identify the
homeowners who should be purchasing insurance. In the normal course, the Commission does
sweeps of businesses. He wonders if the Commission would need to do sweeps of
neighborhoods, going door to door to identify households that employ domestic servants.
Mr. Szablewicz also commented that if the homeowner does not know to purchase insurance or
chooses not purchase insurance, there could be an impact on the Uninsured Employer’s Fund.
The UEF pays benefits to qualified workers of employers who fail to obtain insurance coverage.
The UEF is funded by a tax on premiums received by insurers for workers compensation
coverage. The UEF has a right of subrogation and recoupment against the uninsured employer
for any benefits paid and the Office of the Attorney General is responsible for pursuing the
uninsured employer to recoup those payments. Mr. Szablewicz stated this leads to the question,
will the tax on insurance premiums need to increase and will the OAG bring action against the
homeowner-employer for compensable claims.
Mr. Szablewicz offered some alternatives. The State could establish a special fund to cover
domestic servant workers compensation benefits. At this time, the State has no other special
funds for any other category of employee. He questions, what is the funding source? The
Commission works solely off the tax of the premiums for workers compensation insurance. Mr.
Szablewicz pointed out another option could be to expand coverage by the UEF but without a
right of recoupment. This would likely require an increase in the UEF tax and increase the cost
to all other employers who purchase workers compensation insurance.
Mr. Szablewicz concluded by stating that the Commission could adjudicate any claims if this
category of employee is covered but the real question is how does that work with our system of
private insurance in Virginia. There are a few states that are monopolistic that provide all the
benefits but very few do it that way. Most states use a private insurance system.
Secretary Ball thanked Mr. Szablewicz for his presentation and commented that Mr. Szablewicz
has raised many questions that will need consideration.
With the short time remaining, Secretary Ball asked Dr. Healy to lead a discussion of today’s
presentation and what was presented at the first meeting. Dr. Healy stated that after listening to
our employers and agency representatives, what are the potential challenges for implementing
changes to workers compensation and what are some things that we actually can fix? She stated
that we had a Medicaid question earlier that was not answered.
Ms. Braxton-Williams pointed out that she was asked to make comments on SB 804 as it was
introduced, not the bill that passed, because that is what impacted the Unemployment
Compensation Act. Secretary Ball thanked her for that clarification and stated that from what we
have heard there are enough agency interpretations of the definition that we have got quite a bit
36
of work ahead. Dr. Healy also commented that the original intent of the bill was to have all these
additional supports for this workforce, and it would be good to look at policy and legislation
around supporting domestic workers.
Dr. Healy asked for any additional comments, feelings, anything the group heard today that are
good ideas or potential roadblocks. She also pointed out we want to figure out for the next
meeting what our priorities should be. What we can tackle, what we might not be able to, what
we need to dig deeper into, and look at creative solutions.
Ms. Lane stated that her previous question may not have been understood. She does understand
we are talking about worker protection, but is it possible for us to discuss small businesses
having protection, especially those in the home health care industry. Her company must do
background checks and establish legal status of workers. In the current climate, she is often
afraid to call the police for fear of retaliation and threats against the business.
Secretary Ball told Ms. Lane he appreciated her comments. SB 804 gave the work group very
precise language to review. He continued saying that the things he has learned thus far make
him uncomfortable that workers who are being mistreated do not have an adequate remedy. He
understands there are lots a little bits of help in several agencies and we are going to explore that.
He advised Ms. Lane that she may comment on threats to employers, but that is not within the
confines of this work group. Ms. Lane said she understood. Dr. Healy added that as to
background checks, it is required especially for any kind of Medicaid reimbursement. She told
Ms. Lane we could help her offline. Secretary Ball added that we do not want to leave
Ms. Lane’s concerns unaddressed and her workplace should be as safe as anybody else’s
workplace. He told Ms. Lane that if her company is threatened with harm, we should make sure
there are remedies, but that is not part of what we are doing here.
Ingrid Vaca asked that the work group address the issue of sexual harassment of domestic
service workers, who are particularly vulnerable to this type of mistreatment because they work
in private homes.
Secretary Ball stated that is exactly what we are going to be talking about at our next meeting.
He commented that is an issue he has been concerned about and probably all of us have been
concerned about from the beginning. We want to make sure there is a safe place workers can go,
particularly undocumented workers. If a domestic service worker is unsafe in a household there
needs to be a solution to that. Dr. Healy added this is something dear to her heart and she had a
sexual harassment bill in the General Assembly this year that unfortunately dead. This is an
issue of discrimination in general and that in the Code, if a business has less than five employees,
they can be discriminated against. Gender is sexual harassment. Dr. Healy acknowledged that
we appreciate the comment and need to figure out what to do. Under federal law the number is
fifteen employees and above, in Virginia it is five and above.
Secretary Ball added that his concern is where does the worker go who is not being treated
properly or exposed to something dangerous. Where does the worker go now? What can we do
to make sure there is such a place to go and that law enforcement can get involved? Dr. Healy
stated there are multiple ways, and we are working with the Attorney General’s Office on this
37
and specifically the division of human rights that oversee a lot of discrimination. There are
administrative processes, more through civil action than to circuit court. She stated there is still
the issue of the small employer with under five employees.
Secretary Ball concluded the meeting and advised the group that the next meeting is scheduled
for Tuesday, October 6. Secretary Ball thanked everyone for attending and encouraged the
group to email any additional information or comments prior to the next meeting. The meeting
concluded at 12:00 p.m.
Note: Following the meeting, Ms. Lane sent an email apologizing for not responding during the
meeting to what was an excellent question about her company’s accounting practices and how
she can pay her people at a higher rate. Ms. Lane’s answer is: As a RN, I know that we are only
as good as the person providing care. So, I sacrifice in many other areas, have office with lower
rent, never waste money, less frills, we do not advertise, etc., and I put the money the
organization makes in revenue back into my staff's hands.
Appendix C: Third Meeting Minutes
Domestic Service Workers Work Group
October 6, 2020
MINUTES
The third meeting of the Domestic Service Workers Work Group was held via Zoom/Conference
Call on Tuesday, October 6, 2020 at 10:00am. The members of the work group were present as
follows: Brian Ball, Megan Healy, Valerie Braxton-Williams, Stacy Maher, Robert Field, Jim
Szablewicz, Marta Sanchez, Jen Jackson, Michelle Lane and Jason El Koubi. Work group
member, Ingrid Vaca, was not present as she has contracted COVID-19. Staff members present
were Turner Widgen and Meaghan Green.
Present by invitation were Seyoum Behr with the Office of New Americans and Angella
Alvernaz, State Trafficking Response Coordinator with the Virginia Department of Criminal
Justice Services.
Additional persons present included Jacqueline Duenas and Lizbeth Rodriguez (translators),
Antonia Pena and Miranda Mammen with the National Domestic Workers, Marcia Tetterton
with Virginia Association of Home Care and Hospice, Abbey Philip with Senator McClellan’s
office, and Gabriela Ortiz, an au pair and member of the Alliance of Domestic Workers.
Secretary Brian Ball welcomed the group and thanked everyone for attending. He stated this is
the third and final meeting of the work group. He advised the group that they should review the
minutes and presentations from previous meetings. Secretary Ball outlined today’s meeting. He
introduced Mr. Seyoum Behr, Virginia Refugee State Coordinator and Director of the Office of
New Americans.
Mr. Behr began by giving a brief overview of the Office of New Americans (previously called
the Office of Newcomer Services). This office now focuses on immigrants from all walks of
life, not just refugees. His office is 100% funded by the federal government. Their job has been
38
to assist refugees to integrate into existing communities in the Commonwealth of Virginia.
Mr. Behr believes his office has done well with the refugee program and is excited to say that
they intend to do as well with the immigrant population. Mr. Behr offered some information as
to Virginia’s population relative to number of foreign-born persons and unauthorized persons
(people without proper paperwork). Mr. Behr pointed out the numerous non-English languages
spoken in Virginia. There is an overwhelming number (almost 600,000) of Spanish speaking
people in Virginia. Mr. Behr believes this number implies what we need to do in Virginia.
Mr. Behr continued by pointing out the numerous challenges faced by immigrants and refugees
alike. These challenges include what Mr. Behr calls triple trauma – the country an immigrant
leaves, the country(ies) the immigrant passes through, and finally this country. Other challenges
include tradition, orientation, language, education and lack of resources.
Mr. Behr shared the Office of New Americans Immigrant Services Plan:
• Create a profile of Virginia immigrants;
• Conduct dialogue with Virginia stakeholders to identify unmet needs of immigrants;
• Compile a list of all Virginia service providers;
• Work with Public Affairs to post all relevant information on our website;
• Work with VDSS Finance Unit to separate Federal and State funding;
• Working with VDHS and DBHDS to compile a list of health and mental health
providers in Virginia;
• Work with OD (Office of Human Services) to post two positions to be hired.
Mr. Behr stated that discussions with his stakeholders have included looking into the unmet
needs of immigrants. An example is Virginia 211, there is only one Spanish speaker at 211.
Language is an immediate need. His office is working with stakeholders, service providers, law
enforcement and immigration providers, specifically related to employment. Mr. Behr pointed
out that the best way to integrate into the American society is to be able to become self-
sufficient. A person has to work and the best way to assist immigrants is to help them in the
employment arena. The Office of New Americans has the expertise. Mr. Behr shared that over
80% of his refugees become self-sufficient within a year or so. He hopes to bring those same
results to our immigrant population. Mr. Behr understands that those who do not have legal
papers have additional challenges. There is a need to talk with the community, the stakeholders,
to see what can be done (within the law of course) to make sure all the available services and
information is shared with the immigrant population.
Mr. Behr stated that for the immigrant population to integrate into the American society and our
communities there needs to be self-sufficiency and that means working. His hope at the Office
of New Americans is to provide all the information about employment and employability and
connect immigrants to agencies and individuals who are able and willing to help. He believes if
an immigrant becomes self-sufficient the integration process goes faster. He reiterated the need
for providing English language education and providing information on immigration laws. Mr.
Behr stated that this county is different from most. Even if you do not have legal papers, you
have certain basic human rights that are protected. He wants to make sure that we stay within
the principle of an individual having rights and that the immigrant population knows their rights
and responsibilities. Mr. Behr wants to communicate to all stakeholders within the state
39
government and non-government agencies how to assist immigrants in all areas, but most
importantly, to communicate to the immigrant population how to become independent, self-
sufficient, productive members of the community.
Mr. Behr concluded his presentation (see complete presentation attached) and apologized for the
interpretation problems. Secretary Ball stated that we would continue with the next presentation
and take questions later. He asked Ms. Alvernaz to speak to the group.
Angella Alvernaz began by introducing herself. She is the State Trafficking Response
Coordinator for the Commonwealth of Virginia and is based within the Virginia Department of
Criminal Justice Services.
Ms. Alvernaz stated that human trafficking response in Virginia stated in stages in 2010-2012,
some at the state level and some at the local level. The most recent large body of legislation was
during the 2019 legislative session and that included the establishment of her position. The
overall goal of her position is to bring a consistent, collaborative, multi-disciplinary response to
how we work with human trafficking cases throughout the entire Commonwealth. This includes
stopping the supply, stopping the demand and working with the victims who are exploited.
Ms. Alvernaz explained that DCJS supports trafficking victims by creating a consistent response
protocol for human trafficking. Currently, the focus is on sex trafficking because when this
position was established last year, it was written to begin with sex trafficking. Ms. Alvernaz
made it clear that she will work toward labor trafficking as well. She shared some of the other
ways she and DCJS are supporting trafficking victims, including training providers and other
professionals to assist those who have been exploited, creating standards and protocols for
treatment facilities, working with State Advisory Groups and task forces throughout the state,
developing resources and maintaining a resource guide of providers serving trafficking victims.
Ms. Alvernaz introduced the new logo for Human Trafficking in Virginia that she believes
shows hope and perseverance, teamwork and collaboration, not fear and darkness. She also
shared information about the two State Advisory Groups, the Anti-Human Trafficking
Coordinating Committee and the State Child Trafficking Workgroup. These groups will be
realigned this year to work in a more integrated fashion. Additionally, there is a human
trafficking task force in every area of the State.
Ms. Alvernaz advised the group that there are not very many existing services to assist domestic
service workers. There are a couple of legal services in Virginia and the Human Trafficking
Legal Center in Washington, DC. Currently, there are no other service providers or NGOs
working specifically on workers rights within the domestic services field. There are NGOs
working on labor trafficking for undocumented or under documented immigrants.
Ms. Alvernaz continue by giving some brief recommendations. She stated that DOLI should be
the key agency to work on some sort of bill of rights for the domestic service workers and labor
standards for the workers and the organizations that employ them. She plans to add a
subcommittee to the State Trafficking Advisory Group that will work on labor exploitation and
labor trafficking. This subcommittee would work on all forms of labor trafficking, not just
40
domestic service, and work with all individuals regardless of their documentation status. Her
framework for domestic workers would include (i) creation of a workers bill of rights,
(ii) specific labor standards for domestic service workers, (iii) training for domestic service
companies and placement agencies, (iv) create required courses for families who will be directly
hiring nannies, au pairs, maids, cooks, etc., and (v) establish a hotline for workers to report
abuses. Also for families hiring domestic service workers, Ms. Alvernaz suggested contacting
existing organizations (such as Care.com) that might be willing to offer information as to
Virginia’s rules and regulations for employing a domestic service worker.
Ms. Alvernaz concluded her presentation (see complete presentation attached) with her contact
information and thanked the group.
Secretary Ball continued the meeting by asking if anyone had any questions. Abbey Philip from
Senator Jennifer McClellan’s office asked Ms. Alvernaz if there are survivors of human
trafficking that are part of the regional work groups or the State Advisory Group. Ms. Alvernaz
responded that there are survivors integrated within the task forces. She plans to add a survivor
panel to the State Advisory Group. She is also working on a speaker’s bureau to assist with
more community-based presentations and develop a model presentation to ensure consistent
information is being shared throughout the state.
Dr. Healy asked if there is data on the prevalence of this issue as it relates to domestics,
understanding, of course, this population is hard to track and record. Ms. Alvernaz stated that for
trafficking they do not have comprehensive data. She admitted this is a large project that she is
working on, and it will take a long time to compile. Ms. Alvernza would only be able to offer an
estimate using data from some localities and from national sources. Dr. Healy thanked her for
the information.
Secretary Ball commented that it appears Ms. Alvernaz is a one-person band at DCJS. She
responded affirmatively to being a one-woman show but that she gets a lot of support statewide.
She shared that they just received a $1.6 million grant and her hope is to build out the western
region and hire a position for that area.
Secretary Ball continued recalling that Ms. Alvernaz’s primary focus has been sex trafficking,
but will also be labor trafficking. He wanted to know how interactive she is with local and
federal law enforcement. What does she do when she hears about abusive situations? How does
she currently deal with situations where the complainant would be reluctant to go to law
enforcement for fear of being referred to ICE or being deported or being taken into custody?
What are you doing with law enforcement and what are you doing with persons afraid to go to
law enforcement? Ms. Alvernaz responded that her prior experience is very useful in her current
position. She lives in Northern Virginia and previously worked for Prince William County
Public Schools as the Human Trafficking Prevention Specialist. This is an educational program
but also identifies persons who have been exploited and they case managed those persons until
graduation. Through this experience, she built strong relationships with local law enforcement
and federal partners throughout the Commonwealth. Now, in her current position, if called about
a situation, she has the resources to assist and coordinate. Virginia does have a very large
population of undocumented individuals, especially in Northern Virginia. Ms. Alvernaz
41
commented that it is tricky to work with that population in terms of services. She described her
relationship with several resources and because of this unique connection she can usually and
successfully align an individual with the resource that will offer the most effective assistance.
Secretary Ball commented that it sounds like Ms. Alvernaz is able to interface, at least in
Northern Virginia, with law enforcement. He asked her if she gets referrals or complaints in
jurisdictions that do not have a police department but only a sheriff and deputies in other parts of
the state? Ms. Alvernaz responded that she does, but some of those areas in the state need
assistance. She replied that is the reason she is using the grant to focus on the western region.
That region has been collaborative and she stated they are excited to work together.
Ms. Alvernaz added that they will be working on some models in the western region that she has
used in Northern Virginia. She wants to test these models in the west, and improve and expand
them throughout the state as the standard.
By way of a question posed to Ms. Valvernaz, Abbey Philips commented that people who are
experiencing trafficking might not always be willing to self-identify, and she noticed in
Ms. Alvernaz’s recommendations training for the families. Ms. Philips asked Ms. Alvernaz for
her thoughts on training or outreach for individual workers so they also have information and
resources they can contact if they feel they are being mistreated or there is some kind of
discrimination happening. Ms. Alvernaz responded that training could be integrated into the
placement agency process if a worker uses an agency and the agency is aware of available
training and resources. Additionally, Ms. Alvernaz commented that Mr. Behr’s office could
assist by informing people that there are resources available. The challenge is getting to the
workers who do not go through an agency or Mr. Behr’s office. Ms. Alvernaz reiterated, this
would be when we could approach the websites that might be willing to offer popups with
valuable information as to training and resources. She has not contacted any website about this;
it is just an idea.
Dr. Healy commented that one of the work group’s recommendations will be how best to
communicate with the different stakeholder groups or workers, especially if they are non-English
speakers. Dr. Healy speculated, do we communicate through ambassadors out in the field,
through websites, handouts, posting messages around places of employment? Mr. Behr
responded, all of the above. He added there are many multilingual radio stations, and non-
English speakers listen to the radio. Mr. Behr recommended using the radio, websites, posters
on buses. He commented that his office has used these forms of communication in working with
refugees. Mr. Behr reminded the group that within many of these families there are citizens,
green card holders and non-documented persons. This makes it a little easier because the citizen
or green card holder will share important information with the family member who does not have
proper papers. Mr. Behr reiterated that every possible venue, including radio, is how to share
information. Abbey Philip asked whether they had looked at communicating through the school
systems, sending information home with children living in multilingual homes. Mr. Behr stated
that he has done that with refugee families but not with the immigrant population.
Secretary Ball asked for any additional questions or comments. Hearing none, he continued by
thanking Mr. Behr and Ms. Alvernaz for speaking to the group and invited them to stay for the
remainder of the meeting. Secretary Ball acknowledged that Abbey Philips, representing Senator
42
McClellan’s office, was with us today. He continued that when we get to the recommendation
stage and begin writing our report, we are going to be looking at a greater level of
communication and coordination to address these issues. Secretary Ball recalled as a one-
woman show Ms. Alvernaz’s office is resource constrained. He commented that if we do a good
job of communicating where you can safely go if you are being abused or are a victim of labor
trafficking, he believes just managing the number of inquiries her office may get over a period of
time is going to require some additional resources in the criminal justice area. With that said,
Secretary Ball asked Mr. Rob Feild to tell us what is going on at DOLI, another area of great
importance, and that the General Assembly did a nice job in 2020 by addressing non-payment of
wages.
As Mr. Feild was cut short during our second meeting, he resumed his presentation at page 11
(see complete presentation attached). He pointed out that the issue of joint employer translates to
both occupation itself and payment of wages. With the new language, there is a possibility that a
person who engages a home healthcare worker from a home healthcare services provider, that
both the service provider and the person who engages the worker would be the joint employer.
Mr. Feild pointed out this could present difficulty with defenses to citations arising in this area.
The joint employer could point at the other as the true employer under the statute, and DOLI
would have to sort that out. DOLI’s preference would be to cite the home healthcare services
provider, but they may present a defense that it is the other person under this statute. Mr. Feild
pointed out there are issues dealing with compliance. The penalty amount can be up to $13,000
for one serious violation. Even with the reductions given for smaller employers, the penalty can
be up to $5,000 for one citation. There are also potential citations for failing to meet some of the
other obligations and these carry penalties of $1,000. Another concern is the things an employer
must do including displaying posters, offering training and identifying hazards in the workplace.
Mr. Feild said these requirements could be difficult for an elderly employer to fulfill.
Mr. Field continued by stating that the only people they collect wages for are employers
operating a business under the current definition. DOLI has limited resources to investigate and
sometimes people have tried to use DOLI to address interpersonal disputes. Mr. Feild stated that
the only thing they collect is wages, salaries and commission. They do not collect overtime or
fringe benefits or for independent agents or subcontractors. Additionally, they do not pursue
wage claims when there is a written employment agreement in place (this may be the case in any
home health care situation if funds are from Medicare).
Mr. Feild briefly explained the enforcement process. DOLI only accepts written complaints by
mail. The forms are available on the website (including Spanish). Once the complaint is
received, they contact the claimant to confirm all the information and then DOLI contacts the
employer in an attempt to resolve the complaint. If there is not a resolution, DOLI makes a
decision as to whether the funds are owed and issues a determination letter. He pointed out that
only the employer may appeal the determination, not the employee. As to the collection of
wages, the employee gets unpaid wages plus liquidated damages in the amount of the unpaid
wages and 8% interest on the past due wages, and the Commonwealth gets civil monetary
penalty.
43
Mr. Feild stated that during the last General Assembly session a bill was passed that he believes
should be helpful to DOLI relating to labor law and anti-retaliation. Workers were reluctant to
come to DOLI for fear of being fired for filing a labor law complaint for payment of wages.
Now, if an employee makes a complaint to his employer about his wages and the employee is
fired on that basis, the employee is protected. DOLI will investigate and if there is another
reason the employee was fired, for example if he has not been showing up for work, he will not
receive anti-retaliation protection. If the complaint is legitimate, the remedies for the employee
include reinstatement, back pay and benefits.
Mr. Feild stated that the effect of the new language to include all employers operating a business
or engaging an individual to perform domestic service will give DOLI the opportunity to respond
to complaints from domestic service workers. Currently, they do respond to some complaints by
domestic service workers where there is a business involved. The new language would allow
DOLI to respond even in a situation where there is not a business involved. Additionally, the
new language will require employers to provide paystubs to their employees. Mr. Feild pointed
out some questions may arise from the new language in the joint employer situation and when
home health care is provided under Medicare. He reiterated another issue for elderly employers
may be the cost of a violation and the need to verify hours worked.
Mr. Feild concluded his program and asked for questions. Secretary Ball thanked Mr. Feild and
again asked for questions. Dr. Healy offered two questions: (1) as to wage theft and the appeals
process in that an employer can appeal but not an employee, is this common practice in other
states and how did that practice came about and (2) with the new legislation around hours
worked on a pay stub, how is that verified if an employer pays in cash? Mr. Feild offered an
answer to the second question first by stating that even if you are paying in cash, the employer
should provide a pay stub. Once there is an employee/employer relationship under the statute,
there should be a pay stub provided, unless the employment situation is in forestry or agriculture
where not as much detail is required on the pay stub. As to where the practice came about in the
appeals process, Mr. Feild said that has been part of the statute for a very long time and has
never been changed or addressed. The employee who does not collect wages in a complaint
process does have the right to challenge that in court but that can be costly. He stated that they
are trying to get out of that system to avoid employees having to go to court.
Secretary Ball asked for any additional questions. Hearing no further questions, Secretary Ball
thanked the three presenters.
Marta Sanchez Translation: regarding talking about the victims that are exploited within the
home. Thank you for touching on the subject. Secretary Ball thanked her for this comment as
this issue is very important to us.
Marta Sanchez Translation: One small question, if I could. Is anything being done about
trafficking. Secretary Ball replied that is what we are working on with this group and will bring
recommendations back to the General Assembly on this issue. It was very helpful for us today to
hear from Mr. Behr, Ms. Alvernaz and Mr. Feild, and with appropriate resources, we can provide
more help and support.
44
Again, Secretary Ball asked for other questions or comments. Hearing none, he again thanked
our presenters for today. Secretary Ball, and on behalf of Dr. Healy, he thanked Turner Widgen
and Meaghan Green for their great work so far with the work group.
Secretary Ball continued the meeting sharing an overview of the work group observations. He
commented that we have learned how many domestic service workers we have in Virginia, and
with an aging population we know this is an area that will have continued growth. We know
most of the workers in this space are female and more than half are people of color. Secretary
Ball continued stating that we do not know exactly how many domestic service workers are
undocumented or do not have papers but we will all agree it is a significant number. He
commented that this is more pronounced in areas of the state where there is a higher percentage
of the population with foreign-born residents, like Northern Virginia. We have learned that the
definition of domestic service employee can vary with the agency we are dealing with. It means
different things to different people. He commented that we have more work to do to rationalize
definitions. We do know the business is incredibly diverse with employees working for
agencies, many employees working directly with households and many self-employed persons.
Secretary Ball paused in the work group observations to talk about SB 804 and the legal right it
created for domestic service workers to receive minimum wage. He reminded the group of what
Senator McClellan said in our first meeting that in the case of African American domestic
service workers, it has taken 400 years to get to this point. The work is not complete, but this
bill is a huge step forward and Senator McClellan, as well as all of the General Assembly
members, are to be congratulated for bringing this legislation to the Governor and he was very
happy to sign the bill. Secretary Ball continued by stating that SB 804 asked us to look at other
things that did not pass in the General Assembly, through Caucus or Committee meetings, and
these are included and articulated in SB 804. These include looking at whether there should be
workers compensation, unemployment insurance, protections against harassment and abuse, non-
payment of wages and workplace safety. Secretary Ball stated that the first two items, workers
compensation and unemployment are complex, and to the degree you are creating obligations on
families, it becomes very controversial very quickly. He continued by stating that when you get
to some of the other items that we were asked to look at, we should all agree that non-payment of
wages is something that is intolerable. Secretary Ball again applauded the 2020 General
Assembly for bringing legislation that deals with that issue and gives the Department of Labor
and Industry the tools to deal with it. He also stated that workplace safety is also something we
can all agree on, and Mr. Feild laid out some tools that DOLI has to deal with complaints.
Secretary Ball pointed out that harassment, abuse, trafficking both sex and labor, are areas where
there are abusive situations that need remedies. He stated he is sad today that Ms. Vaca has
taken ill with COVID and could not be with us. He listened to Ms. Vaca and Ms. Sanchez very
carefully at our meetings and will take away two very important points from the concerns they
shared with us: The right to dignity and the right to safety. He feels like we have some work to
do to bring some recommendations to make sure that workers in these bad situations can find
remedies. Secretary Ball felt it was helpful for the work group to hear from Ms. Alvernaz. She
and DCJS have identified problems and concerns with trafficking and undocumented workers
and they are interfacing with local and federal law enforcement, and this will help as we take
45
steps to create a place where people can go safely to make their complaint without fear of
deportation or retaliation.
Secretary Ball continued by stating that we still have work to do to complete our report. He
again thanked everyone for their participation on the work group. Dr. Healy also thanked
everyone for contributing to the work group. Dr. Healy continued by asking the group whether
there is anything we are missing or are there people we have not spoken to.
Ms. Philip asked whether we would have any answers around the impact to State agencies. She
commented that is why some of these issues were placed into study groups because they were so
difficult to identify during the session. If there is legislation introduction in 2021, understanding
the impact on State agencies is a critical part of this. For example, with unemployment
insurance, knowing in advance what impact it would have and also even if it would be allowed
under federal guidelines. This information would be helpful. Ms. Philips continued, as to the
State agencies that are impacted by this bill, will they have some sort of direct follow up on what
they perceive to be the impact and will that be part of the recommendations. Dr. Healy
responded by asking whether Ms. Philip was looking for specific fiscal impacts or whether
additional staff would be needed for oversight, or is she looking at current staff that could be
used or if current responsibilities would change, or both? Ms. Philips responded, yes, a bit of
both. Secretary Ball stated it is more complicated than just fiscal impact. He stated there are
some hard questions that the General Assembly will ultimately need to re-wrestle with in terms
of how far reaching they want to be. For example, when you have workers in family situations,
will you enforce against the family for not paying into the workers compensation fund, there are
criminal and civil penalties involved. Those are very hard questions.
Ms. Philips asked, is there a scenario where, if we cannot create a system where we are holding
families accountable to paying into the unemployment insurance system, should the General
Assembly be looking into putting money in the State budget to create some sort of buffer for
unemployment insurance for these workers if families are not able to do it themselves?
Secretary Ball responded that if there are State funds to provide the things you think you want
then that is good, but there are huge budgetary impacts to that. He stated that he did not think he
or Dr. Healy could speak to where the Administration would be on that. This would involve a
great deal of discussion involving the Secretary of Finance and the Department of Planning and
Budget. Dr. Healy stated these may be valid points and we can circle back with our agency
representatives in the work group to understand the full fiscal impact as well as look for different
options. As to unemployment insurance, because the thresholds are lower for domestic workers
not required to have the higher quarterly wages, she believe there could be communication and
education. Dr. Healy commented that we heard other options during our meetings, such as
portable benefits, and we will look at these other options as we make our recommendations and
whether to include those in our report.
Valerie Braxton-Williams interjected that the reason that the wage requirement is lower for
domestic workers currently is because VEC has authority to do so in the Federal Unemployment
Tax Provisions in Publication 926, the household employment guide, this sets the threshold for
wages for domestic workers. Again, if we do not use the threshold that is allowed of $1,000 then
under the currently bill you would actually be raising that threshold to $1,500 before an
46
employer or someone who hires a domestic worker would have to report those wages to the
Virginia Employment Commission. Dr. Healy thanked Ms. Braxton-Williams for the
clarification.
Dr. Healy asked for any additional observations or anything we have missed. Mr. El Koubi
shared that the summary laid out was very helpful. We have covered a lot of ground in our three
meetings. He wants to emphasize the importance of sharing information with employees and
employers and the importance of having a place for employees to go in case of abusive
situations.
Dr. Healy thanked Mr. El Koubi. Dr. Healy responded to a comment made by Marcia Tetterton
in the chat box stating that home care aides or personal care aides are not categorized as
domestic workers by the U. S. Department of Labor. Dr. Healy stated there are different levels
of home healthcare workers, such as personal care attendants, registered nurses, higher levels of
medical care, so this is something we can consider. Should they be classified as a domestic
worker? She asked the group to email any comments or feedback on this issue.
Ms. Sanchez asked if we could submit our recommendations in written form. Secretary Ball
responded yes.
Ms. Gabriella Ortiz Translation: My name is Gabriella Ortiz. I am a member and volunteer of
the Alliance of Domestic Workers. I just wanted to comment and thank you for the information
you have provided. I think it is important to recognize the work of domestic workers, and at the
same time I also would like to comment on my behalf. I am currently in Northern Virginia. It is
additionally important to address that there should be an interchange, could be considered a job, I
say that because in almost the __ years that I have been here with a __ visa, I have be able to
hear a lot of testimony from different girls that they have felt it not as an interchange but more as
a job. It would be good in the future that the name they place on the program should be
evaluated because a lot of girls come with the opportunity to get to know a new country and also
join in the childcare needs, they also end up doing more than what the responsibilities that the
program states. Just like one of the speakers was saying that the definition of a domestic worker
is not very clear and I think there can be some abuse as well as exploitation because it is not very
clear of what a domestic worker should do. I think anyone can interpret it differently. Anyone
can say, a domestic worker does this, takes care of the kids, and other work, possibly anything. I
think it would be good to evaluate that because as a part of the program, we also have to pay
taxes with the little that we earn. Thank you so much for allowing me to participate in this and
good afternoon.
Dr. Healy thanked Ms. Ortiz, as we had wanted to hear from her as an au pair. If there is any
additional written testimony anyone would like to share, we are open to that as well. Secretary
Ball commented that we would like to hear if any work group members have any additional
comments now, or they can be submitted in writing.
Secretary Ball concluded by stating this is our last meeting. We will be working on a report to
provide to certain members of the General Assembly. He thanked everyone for their service, for
the folks who presented and participated, for all the comments and questions. Secretary Ball
47
commented that we all have learned a lot in a very short time. Dr. Healy also commented that is
has been good to learn more about this workforce as well as the issues to be addressed. Dr.
Healy also thanked Turner Widgen and Meaghan Green for their hard work. They did
background research, looked at other states and different stakeholder groups, called experts and
examined legislation from other states. This research will be some of the foundation for the
report as well as everything we have learned listening to this work group. All that will be part of
the report that will come out November 1. There will not be another meeting. Dr. Healy stated
that if we have questions or concerns, we might reach out to get clarification. She also
commented that there is a gray area between state law and federal law and we hope to clarify
that. Dr. Healy again mentioned that the report will go out on November 1, and we will
appreciate any feedback after that as well. She again thanked everyone for their time and work
and for sharing their stories and ideas.
Secretary Ball concluded the meeting at 11:30am.
48
Appendix D
Department of Labor and
Industry Presentation
Domestic Service Employees Work Group
September 24, 2020
DOLI Programs
•Occupational Safety and Health
• Anti-retaliation provisions
•Labor Law
•Payment of Wages
•Child Labor
•Boiler and Pressure Vessel
•Registered Apprenticeship
DOLI Programs
•Occupational Safety and Health
• Enforcement
• Anti-retaliation
•Labor Law Payment of Wage
Virginia Occupational Safety and
Health
VOSH
VOSH Enforcement
• Employer-Employee Relationship
• "Employer" means any person or entity engaged in business who has
employees, but does not include the United States
• Broadly defined to protect employees
• Person Engaged In Business
• Is person hiring home health care, a cook, etc. a business
• VOSH interprets its law broadly to protect employees
• Rare to inspect home owner or individual
Enforcement Procedures
• Complaint Required
• Receive Complaint
• Analyze Complaint for Serious Hazard
• Complaint Investigation
• Letter to Employer
• Employer Response
• Letter to Complainant
• Complaint Inspection
• On Site Investigation
Issues with Complaint by Domestic Worker
• Not a Business
• Prima Facie Case
• Standard that applies
• Violation of the standard
• Employee exposure
• Employer knowledge
Actual Experience
• Some Circumstances a Private Individual has Been Considered
Employer
• Supervising work on own home
• Providing dangerous materials to person working at the person’s home
• No home healthcare or personal service examples
VOSH Anti-Retaliation
• No person can discharge or discriminate against an employee for
making a safety or health complaint or exercising rights under VOSH
• Complaint to VOSH
• Complaint to employer
• VOSH Investigation
• Discharge or discrimination related to complaint
• No superseding reason for discharge
• Remedies
• Reinstatement
• Back pay and benefits
Effect of New Language
• "Employer" means any person or entity that (i) is engaged in business
or engages an individual to perform domestic service and (ii) has
employees . . .
• VOSH will respond to complaint
• Such an Employer May be Required to Train, Supervise and Provide
Personal Protective Equipment to Employees.
• Employer with no knowledge
• Employees hired for their knowledge and abilities. i.e. health care, cooking.
• Clear Application of Anti-Discrimination Provisions
Questions Arising From New Language
• Is home health care provider ‘engaged’ through home health care service
employee of person or health care service – Joint Employer
• Penalty amounts may or may not be significant for the person who is
considered an employer under this language, depending on the fact
situation
• Independent contractor test
• Own tools and equipment
• Specialized knowledge
• Multiple employers
• Compliance by elderly employers
Labor Law – Payment of Wage
Payment of Wage Enforcement for
Individuals
•All employers operating a business shall pay
wages . . . §40.1-2
•Limited resources to investigate
•Avoid involvement in interpersonal disputes
Payment of Wage Enforcement for Businesses
• Currently investigate claims against businesses
• Only collect wages, salaries and commissions
• Do not collect overtime or fringe benefits
• Do not collect for independent agent or subcontractor
• Do not pursue claims over $15,000
• Do not pursue cases in litigation already
• Do not collect for officers, partners or directors
• Do not pursue wage claims when there is a written employment agreement in
place (this may be the case in any home health care situation if funds are
from Medicare)
Payment of Wage – Enforcement Process
• Written Complaint by Mail
• Contact Claimant for Additional Documentation
• Contact Employer to Resolve Complaint
• Issue Determination Letter
• Employer Can Appeal (Employee Cannot Appeal)
• Collection of Wages
• Employee gets unpaid wages plus liquidated damages in the amount of the
unpaid wages and 8% interest on the past due wages
• Commonwealth gets civil monetary penalty
Labor Law Anti-Retaliation
• No person can discharge or discriminate against an employee for
making a complaint about payment of wages
• Complaint to Labor Law
• Complaint to employer
• Labor Law Investigation
• Discharge or discrimination related to complaint
• No superseding reason for discharge
• Remedies
• Reinstatement
• Back pay and benefits
Effect of New Language
• All employers operating a business or engaging an individual to
perform domestic service shall . . .
• The Department will respond to complaints from domestic service
workers
• Procedures followed as above
• Employers under new language will have to provide paystubs
Questions Arising From New Language
• Is home health care provider ‘engaged’ through home health care
service employee of person or health care service – Joint Employer
• Home health care provided under Medicare
• Paid through DMAS by third party contractor
• Is person care provided for an employer under this language
• Independent contractor under Medicare
• Compliance by elderly employers
• Verifying hours worked
• Cost of violation
Robert B. Feild
Department of Labor and
Industry
Robert.feild@doli.virginia.gov
804-786-4777(o), 804-239-5032(c)
600 East Main St., Suite 207
Richmond, Va. 23219
Appendix E
DOMESTIC SERVANTS
AND
WORKERS’ COMPENSATION IN
VIRGINIA
Jim Szablewicz
Chief Deputy Commissioner
Virginia Workers Compensation Commission
September 24, 2020
Legal disclaimer:
The comments and views in the presentation are those of the author and are not
an official statement of the Virginia Workers’ Compensation Commission.
Nothing in this presentation should be construed to be an advisory opinion by
either the author or the Commission with respect to any particular case or
controversy.
CURRENT LAW
The Virginia Workers’ Compensation Act
Title 65.2 of the Code of Virginia
The term “domestic servant” is not defined in the Virginia Workers’
Compensation Act (Title 65.2 of the Code of Virginia).
In the case of Hux v. Trust for Roche, 59 O.W.C. 143 (Nov. 5, 1980), the Virginia
Workers’ Compensation Commission adopted the following definition of
domestic servant:
“A person hired or employed primarily for the performance of household
duties and chores, the maintenance of the home, and the care, comfort and
convenience of members of the household.”
SB 804, as originally proposed, would establish a statutory definition which is
arguably a bit narrower than the Commission’s definition in the Hux case:
"Domestic service" means services related to the care of an individual in a
private home or the maintenance of a private home or its premises, on a
permanent or temporary basis, including services performed by individuals
such as companions, cooks, waiters, butlers, maids, valets, and chauffeurs."
Va. Code Sec. 65.2-101 specifically excludes domestic servants from the
definition of employees who are covered by the Workers’ Comp Act.
Even if there was not a specific exclusion, most domestic servants would not be
covered as employees under the Workers’ Comp Act because of two other broad
exclusions.
1. Persons whose employment is not in the usual course of the trade, business,
occupation or profession of the employer are not covered under the Act.
Example: A law firm hires someone to paint the interior of its offices. The
painter is not the law firm’s employee because painting is not the usual
course of the trade, business, occupation or profession of the law firm.
So unless a domestic servant’s employer was engaged in the domestic service or
a substantially similar business, the domestic servant would not be covered.
2. Employees of any person, firm or corporation what had regularly in service
less than three employees in the same business in the Commonwealth are also
excluded from coverage under the Act.
This is essentially a small business exclusion.
So even if the domestic servant’s employer was engaged in the domestic service
business, the domestic servant would not be covered unless that employer had
three or more domestic servants regularly employed.
Senate Bill 804
SB 804 as originally proposed would amend Code Section 65.2-101 to remove
the specific exclusion of domestic servants from the coverage of the Act.
SB 804, also would establish a statutory definition of domestic servant which is
arguably a bit narrower than the Commission’s definition in the Hux case:
"Domestic service" means services related to the care of an individual in a
private home or the maintenance of a private home or its premises, on a
permanent or temporary basis, including services performed by individuals
such as companions, cooks, waiters, butlers, maids, valets, and chauffeurs."
SB 804 also would remove the general exclusion of employees of employers who
regularly have in service less than three employees for “employers of those
engaged to provide domestic service or their employees.”
SB 804 would not remove the exclusion of persons whose employment is not in
the usual course of the trade, business, occupation or profession of the
employer
So unless a domestic servant’s employer was engaged in the domestic service or
a substantially similar business, the domestic servant still would not be covered.
THE BIG CHALLENGE:
WHO PAYS?
Workers’ Compensation benefits in Virginia are not publicly funded or paid and
the Virginia Workers’ Compensation Commission does not pay benefits.
Rather, workers’ compensation benefits are paid by workers compensation
insurance procured by the employer or directly by employers who have qualified
to be self-insured under the Commission’s Self-Insurance Regulations (16 VAC
30-80-10 et seq.).
All employers who are subject to the Act are required to obtain such insurance
or self-insured status. (Va. Code Sec. 65.2-801)
The Uninsured Employer’s Fund (“UEF”) pays benefits to qualified workers of
employers who fail to obtain insurance coverage.
The UEF is funded by a tax on premiums received by insurers for workers’
compensation coverage. (Va. Code Sec. 65.2-1201).
The UEF has a right of subrogation and recoupment against the uninsured
employer for any benefits paid and the Office of the Attorney General is
responsible for pursuing the uninsured employer to recoup those payments.
(Va. Code Sec. 65.2-1204).
PENALTIES FOR FAILURE TO INSURE
Employers who fail to obtain required workers’ compensation insurance are
subject to a penalty of up to $250 per day for each day it fails to be insured up a
maximum of $50,000. (Va. Code Sec. 65.2-805(A)).
The Commission has a vigorous enforcement program designed to identify
uninsured employers and to penalize them where appropriate.
The Commission may order any employer who fails to obtain required coverage
to cease and desist all business operations in the Commonwealth until in full
compliance with the insurance coverage requirements. (Va. Code Sec. 65.2-
805(C)).
Any employer who knowingly and intentionally fails to comply with the
insurance coverage requirements is guilty of a Class 2 misdemeanor. (Va. Code
Sec. 65.2-806).
SB 804 does not address insurance coverage, so employers of covered
domestic servants would be required to purchase workers’ compensation
insurance for their domestic servant employees and would be subject to the
same penalties for failure to insure as are other employers.
Most employers of domestic servants are individual households, not businesses.
Requiring them as employers to purchase workers compensation insurance
raises a number of practical concerns:
What is the cost of insurance coverage and will most households that employ
domestic servants be able to afford it?
Assuming they can afford it, how do they become aware of the requirement
to purchase insurance?
If they fail to insure, will they be subject to the same penalties and
enforcement actions as other employers? (They would be as SB 804 originally
was written). How can the Commission identify such employers for
enforcement purposes?
What will be the impact on the Uninsured Employer’s Fund? Will the tax on
insurance premiums need to increase to cover the additional exposure?
Will the OAG pursue benefit recoupment against uninsured households that
have had domestic servants with compensable claims?
Alternatives:
-- Special Fund to cover domestic servants. But what is the funding source?
-- Expanded coverage by the UEF but without a right of recoupment. This likely
would require an increase in the UEF tax, which essentially places the cost on all
other employers in Virginia who purchase workers’ compensation insurance.
QUESTIONS???
Appendix F
Policy Landscape for
Domestic Workers’ Rights
Panorama político para los derechos
de los trabajadores de hogar
NDWA is the nation’s leading
voice for dignity and fairness
for the millions of domestic
workers in the United States.
NDWA es la voz principal en
el país que es dedicado a
luchar por la dignidad y la
justicia para los millones de
trabajadoras de hogar en los
Estados Unidos.
2,500,000
Domestic Workers in the US
Trabajadores de Hogar en los EU
60,000
Domestic Workers in VA
Trabajadores de Hogar en VA
90%
Women
Mujeres
Contract
Retirement
Healthcare
Right to Unionize
Minimum Wage
Overtime Pay
Los contratos
La jubilación
Seguro de salud
El derecho organizarse
El salario minimo
El pago por tiempo
extra
WHAT WE BELIEVE LO QUE CREEMOS
Protect All Workers Invent New Models
Proteja a Todos Los Invente nuevos modelos
Trabajadores We need to preserve what workers
No matter how you work, you have and we need to invent new
should get basic benefits, models to build more power for
protections and representation. more workers.
Debe obtener beneficios básicos, Necesitamos preservar lo que
protecciones y representación en tienen los trabajadores e inventar
cualquier tipo del trabajo. nuevos modelos para generar más
poder para más trabajadores.
State Domestic Worker Bills of Rights
Cartas Estatales de Derechos de las
Trabajadoras de Hogar
▹ New York
▹ Hawaii
▹ California
▹ Massachusetts
▹ Connecticut
▹ Oregon
▹ Illinois
▹ Nevada
▹ New Mexico
State Policy Las prioridades de
Priorities política estatal
Strike Legal Exemptions
▹ Legal and Regulatory Exclusions
▹ Explicit Exclusions of Domestic
Workers
▹ Exclusion of Domestic Workers based
on Workplace Size
Eliminar exenciones legales
▹ Exenciones legales y regulatorios
▹ Exclusiones explícitas de trabajadoras
de hogar
▹ Exclusión de trabajadoras de hogar
según el tamaño del lugar de trabajo
Expand Definition of Domestic Workers
▹ Live-in domestic workers
▹ “Companions”
▹ Casual workers
Expandir definición de trabajadoras de hogar
▹ Las trabajadoras que viven en la casa
de su cliente
▹ “Ayudantes”
▹ Trabajadoras ocasionales
Industry Standards
▹ Paid Time Off
▹ Termination Notice for Live-in workers
▹ Employment Agreements
▹ 24hrs off
▹ Right to Cook
▹ Privacy & Anti-Trafficking Rights
Estándares de la industria
▹ Tiempo de vacaciones
▹ Aviso de terminación para trabajadoras
residentes
▹ Acuerdos laborales
▹ 24 horas de descanso
▹ El derecho cocinar
▹ Privacidad y derechos contra la trata de
personas
Enforcement & Implementation
▹ File & Track Complaints
▹ Private Right of Action
▹ Partnerships to Enforce
Cumplimiento e implementación
▹ Presentar y rastrear quejas
▹ El derecho privado de acción legal
▹ Asociaciones para hacer cumplir
Expand Health and Safety and Workers’
Compensation Coverage
▹ All workers regardless of classification
▹ Retaliation protections
▹ Domestic worker collectives
▹ Educate employers
Ampliar las provisiones de salud y seguridad e
indemnización por accidente laboral
▹ Todas las trabajadoras independientemente
de la clasificación
▹ Protecciones contra represalias
▹ Colectivas de trabajadoras de hogar
▹ Educar a los empleadores
Portable Benefits
▹ Workers access benefits
▹ Clients can make contributions
Beneficios portátiles
▹ Los trabajadores acceden a los
beneficios
▹ Los clientes hacen contribuciones
La carta de Derechos
VA Domestic Workers
de las Trabajadoras
Bill of Rights
de Hogar de VA
SB 804 - Sen. McClellan
Workplace Discrimination Employers with 5 to 20 employees are
excluded. Extend protections to all.
Discriminación en el lugar de
trabajo Se excluyen los empleadores con 5 a 20
empleados. Extienda las protecciones a
todos.
Wage & Hour Domestic Workers are excluded. Remove
exemption.
Salarios y horarios Nonpayment
Las trabajadoras domésticas están
excluidas. Eliminar la exención. Domestic Workers
are not clearly
Domestic Workers are not clearly protected
Nonpayment
protected. Include domestic work explicitly.
Impago de sueldos
No está claro que las trabajadoras
domésticas estén protegidas. Incluya
explícitamente el trabajo doméstico.
SB 804 - Sen. McClellan
Safety & Health A home where domestic service is
performed is not clearly included as a
workplace subject to safety standards.
Seguridad y salud
Un hogar donde se realiza el servicio
doméstico no se incluye claramente como
lugar de trabajo sujeto a normas de
seguridad.
Workers Compensation Domestic Workers are excluded. Remove
exemption.
Nonpayment
Indemnización por accidente Las trabajadoras domésticas están Domestic Workers
laboral excluidas. Eliminar la exención. are not clearly
protected
COVID-19
“The same workers who have been
in the shadows could be key to
stemming the spread of the virus
… They just need the chance to be
a part of the solution.”
“Los mismos trabajadores que han
estado en las sombras podrían ser
clave para detener la propagación
del virus … Solo necesitan la
oportunidad de ser parte de la
solución.”
Ai-jen Poo
THANK YOU!
Appendix G
Septemeber 24, 2020
Nicole Riley, Virginia State Director
▪ NFIB (National Federation of Independent Business) is the voice of
small business, advocating on behalf of America’s small and
independent business owners, both in Washington, D.C., and in all
50 state capitals.
▪ NFIB Virginia represents approximately 6000 small businesses
throughout the Commonwealth.
Definitions Matter
- What is the appropriate definition of “domestic worker”?
- Is one definition appropriate for all industries?
- How does definition interact with Federal definitions?
- How do certifications, licenses, etc. play into definition?
Who is the Employer?
- 3rd Party Employers
- Individual Consumers/Clients
- Self Employed
Independent Contractors
- How do Independent Contractors operate in this area?
Concerns from Small Businesses
- Will additional regulations contradict current requirements
employers are expected to meet?
- Will additional regulations be enforceable?
- Will additional regulations increase costs and recordkeeping for
employers?
- Will state agencies need additional resources to enforce and who
pays for those additional costs?
Food for Thought
- What protections in the way of insurance are already available?
- Is there a way to educate those who are the employers and employees on what
are best practices, what is available to them and how to implement them?
Nicole Riley
Virginia State Director
804.377.3661
Nicole.Riley@nfib.org
Appendix H
OFFICE OF NEW AMERICANS
Third Domestic Service Workers Work Group meeting
10/6/2020
Seyoum Berhe, Virginia Refugee State Coordinator
Director of the Office of New Americans
Seyoum.Berhe@dss.Virginia.gov
Profile of the Unauthorized Population in VA
•Ela Salvador 58,000
•Mexico 39,000
•Honduras 25,000
•Guatemala 18,000
•Philippines 12,000
Top Non English Languages spoken in VA
• Spanish 598,102
• Arabic 59,889
• Chinese (including Mandarin and
Cantonese 57,618
• Korean 53,702
• Vietnamese 53,483
• Tagalog (including Filipino) 50,888
• Amharic, Somali or Other Afro Asian
languages 35,316
• French (including Cajun) 35,316
• Persian (including Farsi & Dari) 34,137
• Hindi 31,160
• Urdu 27,672
CREATION OF Office of New Americans
•An Act to amend the Code of Virginia by adding in
Chapter 24 of Title 2.2 an article numbered 28,
consisting of sections numbered 2.2-2496 through 2.2-
2499, and by adding a section numbered 63.2-209.1,
relating to Department of Social Services; Office of New
Americans created; Office of New Americans Advisory
Board created.”
Triple Trauma
Tradition
Orientation
Language
Education
Lack of Resources
UNEXPECTED TRIP INTO THE UKNOWN FUTURE
ONA-Immigrant Services Plan
• Create a Profile of VA Immigrants
• Conduct dialogue with VA Stakeholders to identify unmet
needs of Immigrants
• Compile a list of all VA service providers
• Work with Public Affairs to post all relevant information on
our website
• Work with VDSS Finance Unit to separate Federal and State
funding
• Working with VDHS and DBHDS to compile a list of health and
mental health providers in VA
• Work with OD to post two positions to be hired
Appendix I
Domestic Service Employee Workgroup
Governor’s Office
October 6, 2020
Human Trafficking Response in
Virginia
State Trafficking Response Coordinator
The Code of Virginia § 9.1-116.5
The overall goal of this position is to create a
consistent, collaborative, multi-disciplinary
response system to how human trafficking cases
are handled.
This must include stopping the supply, stopping
the demand, and serving those who are
exploited.
How Does DCJS Support Trafficking Victims
‒ Create a consistent response protocol for human
trafficking (currently focused on sex trafficking);
‒ Training for providers and other professionals;
‒ Standards for treatment facilities;
‒ Chair the State Advisory Groups;
‒ Participate in task forces and workgroups throughout
the Commonwealth;
‒ Develop resources throughout the Commonwealth;
‒ Maintain resource guide of providers serving
trafficking victims throughout the Commonwealth.
State Advisory Groups &
Task Forces
State Advisory Groups
• State Advisory Groups
‒ Anti-Human Trafficking Coordinating Committee
Originally established in 2013 through Executive Directive 7 by
former Governor Robert F. McDonnell
Chaired by the Virginia Department of Criminal Justice Services
Comprised of representatives from each state agency
Did not meet regularly this year due to the challenges in 2020
‒ State Child Trafficking Workgroup
These groups are being realigned this year to work in a
more integrated way.
Human Trafficking Task Forces
• Hampton Roads Human Trafficking Task Force;
• I-81 Corridor Human Trafficking Task Force;
• Northern Virginia Human Trafficking Task Force;
• Richmond Regional Human Trafficking Collaborative;
• Roanoke Valley Human Trafficking Task Force.
Existing Services &
Recommendations
Existing Services: Domestic Services
• Ayuda Legal Services (https://www.ayuda.com)
• Human Trafficking Legal Center in Washington D.C.
(https://www.htlegalcenter.org)
• Legal Aid Justice Center (https://www.justice4all.org)
• Currently, there are no other known service providers
or NGOs working specifically on workers rights within
the domestic services field.
• There are NGOs working on labor trafficking for
undocumented or under documented immigrants.
Recommendations
• Virginia Department of Labor Representation
• State Trafficking Advisory Groups:
‒ As these groups are reorganized this year add a sub-
committee that will work on labor exploitation and labor
trafficking (inclusive of all individuals and for all labor exploitation)
• Create a legal framework for domestic workers to
include:
Workers Bill of Rights (California and New York State)
Labor Standards for Domestic Services (Seattle)
Training for domestic service companies and placement agencies
Required course for families who will be directly hiring nannies, au
pairs, maids, cooks, etc.
Hotline for workers to report abuses
Angella Alvernaz
State Trafficking Response Coordinator
Virginia Department of Criminal Justice Services (DCJS)
angella.alvernaz@dcjs.virginia.gov
804.517.8695
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