An Explainer: What’s Happening with Domestic Workers’ Rights?

A high proportion of low-wage workers in this country are what we would call domestic workers.  Any account of the working poor and middle class in America must consider how domestic workers are faring in our economy.  But one the key tools that workers have historically used to improve wages and working conditions—unionization—is unavailable to domestic workers under the National Labor Relations Act.  Moreover, many of the usual legal protections for workers do not apply to domestic workers. The below explainer summarizes the role of domestic workers in the economy, how labor and employment laws apply to domestic workers, and some of the recent state-level efforts to improve economic conditions for domestic workers both through unionization and through other means.

Who Are Domestic Workers?

Accurate figures for the number of domestic workers—live in nannies; workers providing child care, elder care, and care to the disabled; and workers providing household help such as cleaning and lawn care—are hard to come by due to nature of the work, lack of reporting requirements, and high percentage of undocumented workers.  The International Labor Organization estimates there are 120,000 to 240,000 domestic workers in New York alone.  An extensive 2010 study by the National Domestic Workers Alliance estimates there are 800,000 domestic workers in the country employed directly by households (as opposed to those employed by third-party agencies).  The Department of Labor (DOL) estimates that there are two million workers providing home care to children, the elderly, or the disabled, including those employed by third-party agencies.

The above mentioned 2010 study found that the median domestic worker earned about $10 per hour, and no health insurance or paid sick days.  23% of domestic workers earn less than the state minimum’s wage.  Generally white domestic workers earn more than nonwhite domestic workers, and authorized workers (citizens or those with work visas) earned more than undocumented workers.  Live-in workers (such as nannies) earned significantly less than caregivers who do not live with their employer.  And 95% of domestic workers are women and 54% are nonwhite, according to a New York Times report of Census data.

Which Federal Laws Cover Domestic Workers?

Domestic workers are excluded from many federal laws protecting worker’s rights.  The National Labor Relations Act, which protects employees’ rights to organize for better conditions and bargain collectively, explicitly excludes workers “in the domestic service of any family or person at his home.”  See 29 U.S.C.  § 152(3).  The Family and Medical Leave Act, which requires employers to allow employees to take up to twelve weeks of unpaid leave to care for themselves, a sick family member, or the birth of a child, exempts employers with fewer than fifty employees, functionally excluding domestic workers.  See 29 U.S.C. § 2611(4)(A)(i).  The Affordable Care Act’s employer mandate, which requires employers to offer employees the opportunity to enroll in employer-sponsored health insurance, exempts employers with fewer than fifty employees.  See 26 U.S.C. § 4980H(c)(2)(A).  (Although employees can still purchase health insurance through an exchange if the employer does not offer employer-sponsored insurance).

The statutes governing employment discrimination only apply to employers with a certain number of employees, which functionally exclude domestic workers.  Title VII of the Civil Right Acts of 1964, which prohibits employment discrimination based on protected characteristics, does not include any employer with fewer than fifteen employees.  See 42 U.S.C. § 2000e(b).  The Americans with Disabilities Act, which prohibits employers from discriminating against employees who are disabled but otherwise qualified to do their job, also only applies to employers with more than fifteen employees.  See 42 U.S.C. § 12111(5)(a).  The Age Discrimination in Employment Act, which prohibits age-based discrimination against those over forty years old, only applies to companies with more than forty employees.  See 29 U.S.C. § 630(b).

For a more comprehensive overview, see the National Domestic Workers Alliance fact sheet.

The Fair Labor Standards Act & Domestic Workers

The Fair Labor Standards Act (FLSA), which provides core wage and hour protections such as the minimum wage and overtime pay, was recently expanded to provide more coverage for domestic workers.  It also has a particularly interesting history with respect to domestic workers’ rights.

The original 1938 FLSA did not include domestic workers at all.  In fact, excluding domestic workers and agricultural workers from both the NLRA and FLSA was part of a key compromise to secure the votes of Southern Democrats in congress.  As described in a history of New Deal labor laws by Sean Farhang & Ira Katznelson, Southern Democrats were concerned that these groups of predominately black workers would gain economic and political power if they were able to unionize or command higher wages.  One of the original demands of the 1963 March on Washington was “[a] broadened Fair Labor Standards Act to include all areas of employment which are presently excluded.”

In 1974, the FLSA was amended to include domestic workers, but with three exceptions.  First, live-in domestic workers were excluded from the overtime requirement, although were still subject to the minimum wage requirement.  See 29 U.S.C. 213(b)(21).  Second, baby sitters were explicitly excluded from both the minimum wage and overtime requirements.  See 29 U.S.C. §213(a)(15).  Third, any employee providing “companionship services for individuals who (because of age or infirmity) are unable to care for themselves” was excluded from both the minimum wage and the overtime requirements.  See 29 U.S.C. §213(a)(15).  While this exception may have originally been small, as the population has aged and disabled persons are more likely to receive care at home than in an institution, the number of domestic workers providing “companionship services” has grown to nearly two million, according to the DOL.

In 2007, a worker challenged the scope of this exception, arguing that because she was paid by a third-party agency, she was entitled to minimum wages and overtime time pay.  In Long Island Care at Home, Ltd., et al. v. Coke, the Supreme Court unanimously decided against the plaintiff.  The Court held that DOL’s interpretation that the plaintiff was not covered by the overtime and minimum wage requirements was entitled deference.  This made clear that DOL had the authority to change this interpretation of the FLSA through rulemaking.  On October 1st of this year, the DOL issued a final rule doing just that. (We covered the new rule here).  Under this rule, first, third-party agencies will no longer be able to claim the exception, meaning employees like Coke will be entitled to minimum wages and overtime pay.  Second, the term “companionship services” will now only include nonprofessional services, such as providing “fellowship,” and does not include “care” such as assistance with the daily tasks of living, medical care, or household services (e.g. cleaning).  Third, the final rule requires additional record keeping to “ensure that live-in domestic service employees are compensated for all hours worked.”

For an extensive history of the FLSA, see the DOL’s narrative history.  For a timeline of major employment and labor legislation as they related to domestic workers, see Mother Jones’s infographic.

What Are States Doing for Domestic Workers?

Three states have now passed some form of a domestic workers’ bill of rights: New York, California, and Hawaii.  California was the most recent to sign such a law.  (We covered it here).  Several other states, including Illinois, Massachusetts, and Oregon are expected to consider similar laws in 2013–2014.  The National Employment Law Project has an excellent state-by-state comparison chart of relevant laws for domestic workers.

New York’s law was the first in 2010, and the others have followed a similar model.  Similar to the basic structure of the FLSA, it extends overtime protections to domestic workers.  Specifically, domestic workers must earn time-and-a-half pay after forty hours of work per week.  Live-in domestic workers must earn time-and-a-half after forty-four hours per week.  It also requires days off: twenty-four hours off per week (or overtime for working on that day), and at least three accrued days off after one year of working for the employer.  In addition, the New York law prohibits sexual harassment, or harassment based on gender, religion, race, or national origin, in the domestic worker setting.  It does not set a separate minimum wage for domestic workers, but in New York domestic workers were already entitled to the New York minimum wage of $7.25 per hour.  It does not cover “casual” domestic workers such as babysitters.

Hawaii’s law was passed July 2013.  Hawaii’s law extends minimum wage protections to domestic workers, with exceptions for “companionship” services or “casual” services such as babysitting.  The law is identical to New York’s in its overtime and time off requirements.  Unlike the New York law (or federal law), Hawaii’s law prohibits discrimination based on “race, sex, including gender identity or expression, sexual orientation, age, religion, color, ancestry, disability, marital status, arrest and court record, or domestic or sexual violence victim status.”

California’s law, passed in September 2013, is largely similar to New York’s.  Governor Brown had previously vetoed a similar stronger law, but signed this most recent version.  A helpful fact sheet is here.  Like New York’s, it requires time-and-a-half for overtime work: more than forty-five hours per week, or nine hours per day.  As in New York, domestic workers were already protected by the minimum wage law in California.  Unlike New York’s law, California’s does not require time off, nor does it include protections against workplace harassment.  The original version of the bill required employers to provide meal breaks and rest breaks, up to eight hours of uninterrupted continuous sleep time, and adequate accommodations for live-in workers.  These protections were not included in the bill that was ultimately passed and signed into law.  California’s law also sunsets within three years unless the legislature renews it.

What Are Unions Doing for Domestic Workers?

Despite renewed calls in the last decade for domestic workers’ unions, there are legal and logistical barriers to unionization.  As noted above, domestic workers are not permitted to unionize under the NLRA.

Even if domestic workers cannot unionize under the NLRA, unions have been a driving force behind the recent legislative action in states.  The National Domestic Workers Alliance has led the fight for the Domestic Workers’ Bills of Rights state legislatures, spearheaded by Director Ai-jen Poo.  Major unions, such as the AFL-CIO and SEIU, have been involved as well, along side nonunion advocacy groups.

As to whether domestic workers could unionize under state law, state statutory schemes vary.  Some states have made recent changes allowing some segments of the domestic worker population to unionize.  One category of domestic workers that have some success unionizing is home-care workers paid by public funds.  These home-care workers are usually providing in-home nonmedical assistance to elderly or disabled persons, and are paid by Medicaid.  Because they are paid by Medicaid, if state law allows it, home-care workers are able to organize as a union and negotiate with the overseeing state agency as the employer, even if the workers are directly hired by individual families.  For example, this past May, Minnesota amended their state labor law to allow home-care workers and in-home childcare workers who are paid by the state (through Medicaid or other public funds) to bargain collectively with a state agency.  This term the Supreme Court will be hearing Harris v. Quinn (which we’ve covered extensively), a challenge to a similar legal arrangement in Illinois.  As our previous coverage has explained, the challenge in Quinn is not to the right of home-care workers to unionize, but rather to the requirement that Medicaid-paid home-care workers pay a fee to the union for its services in contract negotiation, regardless of whether that worker is a member.

Advocates in some states are pushing for legal changes that would allow domestic workers paid directly by private families to unionize.  For example, New York has its own labor relations act that governs private sector workers: the State Employment Relations Act (SERA), implemented by the Public Employment Relations Board (PERB).  Currently, section 701(3) this act excludes domestic workers:

The term ‘employees’ . . . shall not include any individual employed . . . in the domestic service of and directly employed, controlled, and paid by any person in his home, any individual whose primary responsibility is the care of a minor child or children and/or someone who lives in the home of a person for the purpose of serving as a companion to a sick, convalescing or elderly person[.]

This act covers private sector employees that are not governed by the NLRA (for employees covered by the NLRA, SERA is preempted), and according to the New York State Department of Labor:

Currently, the largest groups of employees covered by SERA are parochial school lay faculty, employees of small businesses that do not meet the interstate commerce thresholds established by the NLRB, and individual superintendents of residential apartment buildings.  In addition, PERB has the statutory responsibility for resolving representation disputes involving childcare providers under recently enacted legislation, although such childcare providers are not covered under SERA.

New York’s 2010 Domestic Worker’s Bill of Rights required the New York Department of Labor to produce a report examining the legal and practical challenges to domestic workers’ unions.  Legally, the New York legislature would need to change section 701(3) of SERA to include domestic workers.  Because such workers are excluded from the NLRA, this would not create a federal preemption problem.

Practically, there are a multitude of challenges, each of which would require creative solutions.  The report does not make a recommendation on whether SERA should be changed, but advocacy groups do: Domestic Worker’s United, in collaboration with the National Domestic Worker’s Alliance, produced their own report advocating for SERA to be changed.  They argue the legislature should “amend Section 701(3) of the State Employment Relations Act (SERA) . . . . [and] the Legislature should also ensure that [PERB], has the flexibility and authority necessary to determine bargaining structures for this sector.”

The New York Department of Labor report examined some of the practical challenges and possible solutions.  It notes domestic workers  “are highly decentralized, working in individual homes, usually without co-workers.  Their isolation makes it difficult for them to raise issues with their employers.  This decentralization also complicates the question of how to form an appropriate bargaining unit for domestic workers, as each worker labors for a different employer at a different worksite.”  It also discusses how employers of domestic workers are different than traditional employers: “They employ such workers not as part of their primary business and means of learning their living, but in addition to their regular jobs.  Many have little time or ability, in addition to work and family responsibilities, to take on additional administrative burdens.  Further, the ability of such employers to pay is limited by their own income, and they do not have the ability to pass on the cost of increased salaries or benefits to consumers, or to do so by restricting profits.”  Finally, fairly firing or laying off domestic workers presents particular challenges: “progressive discipline and the potential for reinstatement [for] retaliatory terminations . . . would be difficult to obtain in workplaces that are private homes.  Yet termination of live-in domestic workers without any advance notice places them at risk of homelessness.”

However, the report concludes that there are multiple feasible approaches were unionization legal.  One approach is voluntary one-person bargaining units between a worker and her employer.  These could then evolve “from voluntary, single person bargaining relationships with individual employers to collective bargaining relationships between a labor organization and employer associations.”  As a variation on this, if employers are unwilling to voluntarily recognize unions and form employer associations, PERB could certify bargaining units of one employee and one employer.  PERB has previously certified bargaining units of one: a single building superintendent.  The main advantage of this is union representatives could develop boilerplate agreements between employers and employees (for example, regarding wages, schedules, time off, and severance pay) and employers would be required to negotiate with a union representative in good faith.  One of the major downsides is that most likely few domestic workers would actually take the steps to become certified as a bargaining unit of one.

Another approach discussed in the report is organizations that would ensure benefits are available to domestic workers, even if they do not collectively bargain with employers.  One model for this is the Freelancers Union, a Brooklyn based union that provides group health insurance to members.  Similarly, domestic workers could form hiring halls or cooperatives, which the report describes as groups where “standards are set by workers and maintained by workers refusing to work for less.”  Traditionally hiring halls have been used to provide new employees for employers who already have a unionized workforce, so this model would need to be adapted to the nonunionized setting.  These could serve some of the same functions that third-party agencies do now— such as screening employees, providing training, standardizing wages and hours, and overcoming language barriers—but would do so with an eye towards protecting workers.

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