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@StateDept Issues Policy For Employees With Personal Domestic Workers, Spells Out Penalties

Posted: 3:49 am ET

In February 2016, the State Department issued a formal policy for employees with  personal domestic workers.

The Department expects its employees to treat personal domestic workers in a manner reflecting basic concepts of dignity.  All employees, their family members, and members of household are advised that the use of physical force, threats of force, coercion (including threatened withdrawal of immigration benefits), or fraud to compel labor or sexual services from a personal domestic worker could constitute the crime of trafficking in persons under U.S. law.  Further, all employees are expected to abide by the provisions of their contracts with personal domestic workers.  

Personal domestic workers are neither Federal employees nor employees of U.S. diplomatic missions.  They are employees of the individual(s) in whose home they work and provide personal services. The policy covers direct-hire Executive Branch employees assigned abroad under Chief of Mission authority who are are expected to ensure that personal domestic workers employed in their homes are treated fairly and provided employment conditions in accordance with local law and custom, to the extent consistent with 3 FAM 4128.”  

The following regulations pertain to all personnel under Chief of Mission authority.  Post management may develop a policy to implement these regulations in conjunction with actions required or permitted under local law.  Any such policy must adhere to the regulations contained in this chapter, be compliant with local labor law and be fully consistent with U.S. human rights and anti-trafficking policies. 

3 FAM 4128.2-1  Employees Bringing  Personal Domestic Workers to Post
(CT:PER-804;   02-01-2016)

(Applies to Executive Branch employees under Chief of Mission Authority)

All Executive Branch employees assigned abroad under Chief of Mission authority who bring personal domestic workers to post with them (i.e., where personal domestic workers obtain immigration benefits in order to accompany an employee to post) are expected to: 

(1)  Enter into a written employment contract with the personal domestic worker before that person requests a visa to travel to post or is otherwise assisted by the mission in coming to or remaining at post; 

(2)  Ensure that the contract complies with local law, 3 FAM 4128, and any applicable post policy, including post policy on the form of payment to personal domestic workers.  Contracts must include the following terms: 

(a)  Description of duties:  The contract must describe the work to be performed, e.g. housekeeping, gardening, child care, etc. 

(b)  Hours of work:  The contract must state the time of the normal working hours and total number of hours worked per week.  A typical work week consists of 35 to 40 hours per week.  The contract must also provide the personal domestic worker with a minimum of at least 1 full day off each week and reflect local law requirements, if any, with regard to paid holidays, sick days, and vacation days.  If local law does not make provision for paid leave in these circumstances, the contract must explicitly state whether such leave will be provided and if so, on what terms.  

(c)  Wages:  The contract must state the hourly/weekly/monthly wage (prevailing or no less than minimum rate) to be paid to the personal domestic worker and the frequency with which the worker will be paid, which must be at least once a month.  It must also state that deductions (e.g., food, lodging, etc.) may not be taken from the wages, except for deductions required by local law (e.g. social security) or requested by the employee (such as repayment of a salary advance) or where such deductions are allowed because the employee who provides lodging pays for the lodging with personal funds.  Employees living in no-cost government-provided housing or in government-subsidized housing may not deduct lodging expenses from wages, nor may they pay a reduced minimum wage for live-in domestic workers, even if such deductions or such a rate is available under local law.  Deductions for lodging or payment of a reduced minimum wage for live-in domestic workers where available under local law are permissible only for employees who provide lodging for domestic workers in housing paid for with personal funds.  The contract must include a provision for severance and/or separation payments on termination of employment, if required by local law. 

(d)  Overtime work:  The contract must state that any hours worked in excess of the normal working hours are considered overtime.  The contract must clearly state the rate for overtime work.  The rate for overtime must be at least as much as the hourly rate paid for normal working hours and must be consistent with local law requirements.  Hours the personal domestic worker is required to stay in the residence because he or she has to be “on stand by” are considered work/overtime hours and must be paid as such.  Where local law and contractual terms permit, the employer may authorize compensatory time in lieu of overtime, provided the employee is given sufficient opportunity to utilize compensatory time off that is earned. 

(e)  Possession of identity and personal documents:  The contract must state that all identity, travel, and personal documents, including the passport and visa must remain in the sole possession of the personal domestic worker. 

(f)   Living conditions:  If the personal domestic worker lives in the residence, the contract must reflect that the employer is obligated to provide adequate and reasonable accommodations.  This will include at a minimum a private bed, access to a bathroom, kitchen facilities, and proper food storage.

(g)  Transportation to and from home country: The contract must state that the employer will pay for the transportation of the personal domestic worker to and from post, unless the worker decides to stay at post and can do so legally.  These costs may not be deducted from the worker’s salary. However, the employer is not responsible for any travel that the domestic worker takes on their own while at post.

(h)  Provide a copy of the signed final contract to the personal domestic worker for his/her records; and 

(i)   Submit to the Management Officer or his/her designee a signed declaration indicating that the sponsoring employee has a written contract with the personal domestic worker that meets the standards of 3 FAM 4128, local labor law, and any applicable post policy (see 3 FAM 4128.5 for a sample declaration).  The declaration must be submitted before the mission provides assistance in obtaining a visa for the personal domestic worker or the mission otherwise assists the personal domestic worker in coming to or remaining at post.  Post management may also require submission of the written contract before requesting a personal domestic worker’s visa.

(j)   Maintain contemporaneous records of payment during the assignment.  Employees are encouraged to keep those records for 5 years after the termination of employment, regardless of whether payment is made via electronic transfer, by check, or in cash.  Payment records must indicate the date of payment and amount paid. If payment is made by cash, these records must make clear to both the employer and the personal domestic worker that payment was made and received on said date.

(k)  Adhere to post policy on payment of personal domestic workers.  When feasible and appropriate, post policy shall require payment of salary by check or electronic fund transfer to a local bank account in the name of the personal domestic worker.    

(l)   Ensure that employment contracts are written in English, and, if the worker does not understand English, the contract must also be written in a language s/he understands. The contract must be signed by both the employer and the worker.

3 FAM 4128.2-2  Employees Employing Locally Hired Personal Domestic Workers Abroad
(CT:PER-804;   02-01-2016)

(Applies to Executive Branch employees under Chief of Mission Authority)

a. All Executive Branch employees assigned abroad under Chief of Mission authority who locally hire personal domestic workers to work for more than 20 hours per week (who are either nationals of the receiving state or otherwise authorized to work in that state) are required to have a written contract with such workers that include all the required elements below.

b. All employees who meet the criteria of 3 FAM 4128.2-2(a) are encouraged to keep contemporaneous records of payment during and for up to 5 years after the termination of employment, regardless of whether payment is made via electronic transfer, by check, or in cash.  Payment records must indicate date of payment and amount paid.  If payment is made by cash, these records must make clear to both the employer and the personal domestic worker that payment was made and received on said date.

c.  Adhere to post policy on payment of personal domestic workers.  When feasible and appropriate, post policy shall require payment of salary by check or electronic fund transfer to a local bank account established in the name of the personal domestic worker.

d. Post management should ensure employees are aware of the contractual requirements for personal domestic workers through check-in procedures, management notices, and/or other appropriate means.  Post management may require submission of a signed declaration attesting to compliance with local law, 3 FAM 4128, and any applicable post policy, including post policy on the form of payment to personal domestic workers when entering into an employment contract with locally-hired personal domestic workers, and/or submission of copies of such contracts. 

e. All contracts with a locally hired personal domestic worker must be in English.  If the worker does not understand English, the contract must also be written in a language s/he understands. The contract must be signed by both the employer and the worker.

f.  All employment contracts with a locally hired personal domestic worker must be in accordance with local law, 3 FAM 4128, and any applicable post policy, including post policy on the form of payment to personal domestic workers. Contracts must include the following terms:

(1)  Description of duties:  The contract must describe the work to be performed, e.g. housekeeping, gardening, child care, etc. 

(2)   Hours of work:  The contract must state the time of the normal working hours and total number of hours worked per week.  A typical work week consists of 35 to 40 hours per week.  The contract must also provide the personal domestic worker with a minimum of at least 1 full day off each week and reflect local law requirements, if any, with regard to paid holidays, sick days, and vacation days. If local law does not make one or more provisions for paid leave in these circumstances, the contract must explicitly state whether such leave will be provided and if so, on what terms.  

(3)  Wages:  The contract must state the hourly/weekly/monthly wage (prevailing or no less than minimum rate) to be paid to the personal domestic worker and the frequency with which the worker will be paid, which must be at least once every month.  It must also state that deductions (e.g., food, lodging, etc.) may not be taken from the wages, except for deductions required by local law (e.g., social security) or requested by the employee (such as repayment of a salary advance) or where such deductions are allowed because the employee who provides lodging pays for the lodging with personal funds. Employees living in no-cost government-provided housing or in government-subsidized housing may not deduct lodging expenses from wages, nor may they pay a reduced minimum wage for live-in domestic workers, even if such deductions or such a rate is available under local law.  Deductions for lodging or payment of a reduced minimum wage for live-in domestic workers where available under local law are permissible only for employees who provide lodging for domestic workers in housing paid for with personal funds.  The contract must include a provision for severance and/or separation payments on termination of employment, if required by local law. 

(4)  Overtime work:  The contract must state that any hours worked in excess of the normal working hours are considered overtime. The contract should clearly state the rate for overtime work. The rate for overtime must be at least as much as the hourly rate paid for normal working hours and must be consistent with local law requirements. Hours the personal domestic worker is required to stay in the residence because he or she has to be “on stand by” are considered work/overtime hours and must be paid as such.  Where local law and contractual terms permit, the employer may authorize compensatory time in lieu of overtime, provided the employee is given sufficient opportunity to utilize compensatory time off that is earned.   

(5)  Living conditions:  If the domestic worker lives in the residence, the contract must reflect that the employer is obligated to provide adequate and reasonable accommodations.  This will include at a minimum a private bed, access to a bathroom, kitchen facilities, and proper food storage.

3 FAM 4128.3  Violations and Penalties
(CT:PER-804;   02-01-2016)

(Applies to Executive Branch employees under Chief of Mission Authority)

a. Any abuse or mistreatment of a personal domestic worker, including but not limited to activities which rise to the level of human trafficking, whether such actions are undertaken by an employee, dependent, or member of household is a matter of grave concern to the Department.  Employees engaging in such misconduct will be subject to discipline up to and including removal from employment.   

b. Allegations of abuse and/or mistreatment of a personal domestic worker by U.S. Government employees assigned abroad under Chief of Mission authority, family members, or members of household shall be brought to the attention of post management, including the Regional Security Officer.  The Regional Security Officer, in coordination with the DS Office of Special Investigations, will determine if there is sufficient basis for a criminal or administrative misconduct investigation.  If claims or allegations are substantiated, employees engaging in such conduct may be subject to an administrative penalty and/or referral to the Department of Justice for criminal prosecution for relevant offenses potentially including trafficking in persons.  Depending on the level of immunities, individuals may be subject to local criminal prosecution and/or civil suit.

c.  Section 3271 of Title 18 of the United States Code specifically extends the reach of federal trafficking statutes (including forced labor) to the activities of U.S. employees and those who accompany them abroad:

“Whoever, while employed by or accompanying the Federal Government outside the United States, engages in conduct outside the United States that would constitute an offense under chapter … 117 of this title [peonage, slavery, trafficking in persons] if the conduct had been engaged in within the United States or within the special maritime and territorial jurisdiction of the United States shall be punished as provided for that offense.”

d. No U.S. government employee or family member accredited to a foreign government is protected from prosecution by U.S. authorities because he or she may enjoy immunity in  the state in which he or she is assigned abroad.

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