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Victory for domestic workers

Special to The National Law Journal
August 23, 2010

Onn July 1, the New York State Assembly and Senate passed the landmark Domestic Workers' Bill of Rights. When Gov. David Paterson signs it, as he has committed to do, it will become the first such state legislation in the nation. As Colorado and California groups are already planning to push for a similar measure, the law may prove a bellwether for reform of household employees' lives.

The stepchildren of the working world — housekeepers, maids, nannies and others who perform low-prestige but vital tasks in private homes — have failed to enjoy virtually all the safeguards accorded most employees. In the federal realm, although the minimum wage and overtime sections of the Fair Labor Standards Act (FLSA) have applied to these workers facially since 1974, broad exemptions belie that coverage. Babysitters hired "on a casual basis" and companions of the infirm and elderly need not be paid minimum wage, and live-ins have no right to overtime.

More drastically, the National Labor Relations Act (NLRA) expressly excepts people "in the domestic service of any person or family at home." They therefore lack the bargaining power to obtain by collective action the kinds of benefits denied them by the FLSA. Examples of other federal protections withheld from this group include the Occupational Safety and Health Act's guarantee of a salubrious workplace and Title VII's entitlement to freedom from discrimination on invidious grounds.

Workers in the home

A number of reasons may explain the persistence in the present setting of 19th-century working conditions in 20th and 21st century America. For one thing, in order to secure the support of Dixiecrat senators for New Deal legislation — including the NLRA and FLSA — its sponsors had to omit occupations dominated, like household labor, by females and blacks. Their continued overrepresentation in domestic service accounts for the lack of reform in this area until recently.

Generally, too, society tends to disparage what they do as "women's work." Further, the exploitation they face from unscrupulous employers — ranging from standard low wages and long hours to verbal, physical and sexual abuse in extreme cases — occurs behind closed doors. The victims, who may be undocumented, often are afraid (or do not know how) to complain of even egregious mistreatment. Accordingly, the Domestic Workers' Bill of Rights comes none too soon for its beneficiaries.

The act, which defines "domestic worker" very broadly, excluding essentially only those hired on "a casual basis" and family members, improves upon their situation in a number of notable ways. First, it provides for mandatory overtime, based on a 44-hour week for live-in employees and the usual 40-hour week for others. (Their employers must already pay the minimum wage in New York to all but part-time babysitters.) Second, it entitles covered workers to at least a day off per week and, after one year's service with the same employer, three days of paid vacation. Third, it extends to them protection under the workers' compensation law.

Fourth, it affords previously denied rights against sexual harassment as well as harassment grounded on gender, race, religion or national origin. Although it fails to ban discrimination in forms other than creation of a hostile environment, perhaps on the view that in intimate contexts employers should retain substantial freedom to hire and fire — except as amended by this legislation, the New York Human Rights Law does not cover employment of fewer than four individuals — the act as a whole amounts to an anti-bias measure on behalf of poor minority women.

Significantly, the final bill (the Assembly version) cut back on more expansive safeguards contained in the bill that passed the Senate on June 1. These included, for full-time employees, seven paid sick days, five paid vacation days, six paid holidays and coverage by the state disability benefits and labor relations laws. (The Assembly bill calls only for a study, to be conducted by Nov. 1, of "the feasibility and practicality" of giving household workers the right "to organize for purposes of collective bargaining.")

Most controversially, an omitted section provided for 14 days' written notice of termination in most cases, in default of which the fired employee would be entitled to back pay and other remedies.

Simply stated, maids, house cleaners, nannies and their cohorts have finally received a proverbial "half loaf" of workplace protections in New York. It remains to be seen whether these gains will be widely replicated elsewhere and will expand to a fuller loaf including benefits like health insurance. That, in turn, may depend on whether these vulnerable workers, contending against the historic trend, manage to unionize. If they do, a new world awaits both them and their unorganized bosses.