BY ALEX BRADSHAW
Affluent and middle-class American families hire some 2.5 million employees to work in their homes. Behind closed doors, these domestic workers — who cook, clean, run errands and provide care for young, elderly, ill and disabled family members — provide a great deal of the necessary, invaluable social labor in the U.S. Yet domestic labor is excluded from many of the most fundamental rights and protections given to the majority of employed Americans. Out of sight and mind of the American public, these workers often suffer exploitation, harassment, unsafe work conditions and employer retaliation.
The story of contemporary domestic workers is one of both tragedy and triumph. Without the same federal labor protections given to the majority of Americans, domestic workers have faced monumental challenges. However, due to the grassroots organizing of domestic workers, life-changing reforms known as the Domestic Workers Bill of Rights (DWBR) have been passed in New York, Massachusetts, Illinois, Hawaii and Oregon, with legislation pending in Connecticut. While five states have passed DWBR, there is no such bill on the table in the state of Kentucky.
LEO talked to local labor leaders and workers about domestic labor conditions in Louisville and the potential for a labor movement that might bring labor rights and protections behind the closed doors of so many Louisville homes where domestic workers struggle for dignity on the job.
The exclusion of domestic work from federal protections
The National Domestic Workers Alliance (NDWA) is a social justice group on the forefront of fighting for reforms and the rights of domestic workers. While not a traditional labor union, the NDWA is an organization of domestic workers advocating for the same rights and issues as most modern day labor unions: fair wages, safer workplaces and more access to benefits like healthcare.
In 2012, The NDWA and the University of Illinois in Chicago published “Home Economics: The Invisible and Unregulated World of Domestic Work.” Based on surveys from over 2,000 domestic workers, it is the most comprehensive resource for issues plaguing domestic workers in the 21st century. The findings show the necessity for reform at both the federal and state level.
The survey’s findings told the country what many already knew: domestic workers face disproportionate levels of exploitation and wage theft. For example, 23 percent of domestic workers who were surveyed earned less than minimum wage; for live-in workers, the number rose to 67 percent.
While the Fair Labor Standards Act (FLSA) excludes live-in domestic workers, workers providing non-medical care for adults and so-called “casual” employees (e.g., part-time babysitters), the FLSA technically mandates that all non-live-in domestic workers should be paid the state minimum wage. However, the FLSA “is not enforced very well,” according to Louisville labor lawyer Ben Basil. “The Department of Labor doesn’t have the staff to enforce the FLSA — it’s enforced through private lawsuits, if it’s enforced at all,” Basil said.
Basil described enforcement through private lawsuits with the FLSA as problematic since they are expensive and lengthy. “Domestic workers aren’t making much money. And if you can’t afford to pay [an attorney], then you have to wait until you find someone who will take the case [pro bono or pending financial award]. And then it could be a couple of years before you see any results,” Basil stated. This makes it increasingly difficult for not only domestic workers, but all low-wage workers, to file a grievance regarding wage theft.
In addition to exclusions from the Fair Labor Standards Act (FLSA), the 2.5 million domestic workers in the U.S. are excluded from Title VII of the Civil Rights Act of 1964, the Occupational Health and Safety Act (OSHA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act and the National Labor Relations Act (NLRA).
Title VII of the Civil Rights Act of 1964 provides certain federal protections for most workers, excluding domestic workers. The law states that an employer cannot discriminate based on “race, color, religion, sex or national origin.” Domestic workers do not even have this basic protection, because the law only applies to employers with at least 15 workers, and the most common situation for domestic workers is being the only employee to one household.
Lacking OSHA protections presents another obstacle for domestic workers: safety on the job. While most families consider their homes safe, workplace injuries are common for domestic workers. Per the “Home Economics” study, 38 percent of all domestic workers surveyed reported workplace injuries. Further, if injuries that take place on the job lead to temporary or permanent disability, employers do not have to make reasonable accommodations since the Americans with Disabilities Act (ADA) doesn’t cover domestic workers.
And without protections from the FMLA, domestic workers typically have to work through an injury to continue to pay their bills. The FMLA exclusion also prevents most domestic workers from having a standard maternity leave.
One local domestic worker identified as “Emma” described the difficult decision she had to make after giving birth to her first child: “They [the employers] offered two weeks off when I gave birth to my first child, but it wasn’t going to be paid. It wasn’t an option for me to go two weeks without a paycheck, so I went back to work just a few days after both of my kids were born.”
The lack of labor protections can quickly put a domestic worker in a financial conundrum. It’s no surprise that the “Home Economics” report also concluded that 48 percent of domestic workers didn’t have adequate wages necessary to raise their own family. As a local domestic worker identified as “Mary” told LEO, “I spend more time with the girls I nanny for than my own child.”
All of the domestics workers LEO spoke with preferred to be identified by pseudonyms due to the threat of employer retaliation. [Editor’s Note: All anonymous sources agreed to talk with the managing editor for verification]. Reasonable fear of retaliation is documented in the “Home Economics” study, which states that 23 percent of domestic workers surveyed reported being terminated for “complaining about working conditions,” whereas 18 percent who were fortunate enough to have a contract reported being terminated for “protesting violations of their contract or agreement.”
Race, gender and exclusion from the NLRA
While American unions are not above reasonable criticism, one fact cannot be denied: U.S. workers belonging to a union can file grievances with their union representative without the fear of termination or retaliation from an employer. Per the “Home Economics” report, 91 percent of domestic workers “who encountered problems with their working conditions in the prior 12 months did not complain because they were afraid they would lose their job.” While collective bargaining and unionization would address the issue of individual vulnerability, domestic workers are excluded from the NLRA, which protects workers from retaliation and termination while participating in “concerted activity” with other workers (i.e., creating a petition or discussing forming a union with coworkers).
The reasons domestic workers were initially excluded from the NLRA, passed in 1935, has much to do with race and gender. The two groups of workers excluded from the 1935 passage of the NLRA — agricultural and domestic workers — comprised primarily African-American workers in the South.
Pro-Jim Crow Democrats in the Southern states “were critical to the coalition that passed the NLRA and other New Deal legislation,” the “Home Economics” report states. The inclusion of domestic and agricultural workers in the NLRA would have meant empowering black workers to unionize.
Further, according to the United Workers Congress, a workers’ rights organization, 95 percent of all domestic workers are female. “Domestic work is primarily done by women, who in 1935 had the right to vote for 15 years. It’s hard to imagine gender didn’t play a role in it,” Basil said.
Kentucky AFL-CIO President Bill Londrigan said that domestic workers face immense difficulties when it comes to organizing. First, having no “legal protections from the NLRA is a major impediment to organizing domestic workers since their right to form or join unions can simply mean they can be fired for doing so, without legal recourse that protects these critical rights,” Londrigan said. “Domestic workers are at the mercy of their employers to determine conditions of employment without any input from those who actually do the work on a daily basis.”
While domestic workers are at the mercy of their employers, there are examples of groups that have maintained strong unions without the coverage of the NLRA, such as public employees, who are also excluded from the NLRA.
“You don’t have to be recognized by the National Labor Relations Board (NLRB) to organize,” Basil said, citing the regulatory body that recognizes most American labor unions through a monitored election process in which the employees petition for a union and then have an election on whether or not to unionize. “But if you’re not recognized by the NLRB or your employer, you also don’t have any kind of enforcement mechanism.”
Workplace solidarity amongst public employees has counterbalanced the lack of protections in some cases. This, too, is a possibility for domestic workers. Basil cites Jefferson County teachers as an example: “The teachers in Jefferson County do not have any specific authority to be organized. They just have their strength, and the district recognizes them because they have to — not legally, but practically. They’re not covered by the NLRA, and there’s no state statute that mandates that the teachers be recognized by the districts. They’re recognized because they’re strong.”
But since domestic workers are typically employed by one household or individual, the difficulty in organizing across the entire workforce cannot be stressed enough. However, similar groups of workers have organized. “Perhaps the best example is the building trades unions, which operate hiring halls, and refer members to multiple employers within their jurisdiction,” Londrigan said. “Households are not exactly comparable to construction contractors, but the ability to organize and collectively bargain on a multi-employer basis is well-established and legally protected for various occupations and employers.”
The New York State (NYS) Department of Labor (DoL), after the passage of the first Domestic Worker Bill of Rights in 2010, reached similar conclusions: They recommend alternative structures for collective bargaining and union organizing for domestic workers. A report issued by the NYS DoL recommended “feasible options” such as “hiring halls and/or cooperatives, legislation requiring written contracts of employment for domestic workers and frameworks for the provision of health insurance to domestic workers.”
Londrigan concurred that “hiring halls and collectives are mechanisms for establishing wage and benefit standards for widely dispersed employers, and this model has been successful in food service and in some elements of the health care industry.” He also said that in these types of arrangements, the union “screens, organizes, trains and refers workers in these industries and guarantees fair pay, or employers are denied access to the pool of workers they require.”
Non-traditional organizing models
While hiring halls or cooperatives, otherwise known as co-ops (businesses collectively owned and democratically managed by all workers in the co-op) are not typical union structures, it is clear that the domestic worker organizing model must be different than that of a large corporation. In New York City, domestic workers have also had success with co-ops made up of domestic workers managing their own affairs democratically. The success of the 64-member co-op “Si Se Puede!” is a tangible example of a bottom-up labor victory. “Si Se Puede!” is an all-woman, all-immigrant New York City-based co-op formed in order to give domestic workers (in this case, house-cleaners) a dignified working life. The fact that this co-op of domestic workers is all-woman and all-immigrant cannot be overstated: 36 percent of domestic workers are undocumented immigrants, whereas 45 percent are foreign-born, per the “Home Economics” study.
Workers in the co-op are able to make decisions collectively on the job, and the collective embraces the labor union model of both workplace democracy and worker solidarity. Profits are shared amongst the co-op, and the average wage of the co-op, $23 hourly, is much higher than the average domestic worker wage.
Members of the co-op also only use eco-friendly, natural products to ensure safety, since 29 percent of domestic workers surveyed reported both skin irritation and trouble breathing, which is likely associated with long-term exposure to cleaning chemicals in homes, where domestic workers are not protected by OSHA regulations.
As “In These Times” reported last August, the “Si Se Puede!” co-op, as well as other domestic worker-run co-ops, benefitted from the fact that the “City Council of New York established a Worker Cooperative Business Development Initiative and put up $1.2 million to fund it.”
Domestic Workers United (DWU), another domestic worker and immigrant-run advocacy organization, is working to build on the momentum of the NYS DWBR, and to construct “non-traditional” models of collective bargaining, such as “Domestic Worker Justice Zones,” which are area-specific bargaining zones, typically in neighborhoods in New York City based on “area-specific agreements on wages, benefits and terms of employment.”
Non-traditional organizing victories, such as co-ops and the creation of national coalitions, have proven to be an effective way to counter the exploitation faced by domestic workers in the workplace, as well as the lack of federal protections. Broad-based coalitions, such as the NDWA, have been at the forefront of fighting for legislative reform at the state level to couple their efforts to organize domestic workers.
Grassroots victories and the DWBR
It would be a mistake to think that the five Domestic Workers Bills of Rights (DWBR) laws passed across the country came from the mind of benevolent politicians; these were demands made from well-organized groups of domestic workers, pushing from the grassroots.
As Harold Meyerson reported in the Los Angeles Times, it was the domestic worker-run NDWA that “won legislation in four states, including California, which entitles domestics to overtime pay.”
While DWBR laws differ slightly state to state, they have a broad commonality: They offer protections for domestic workers which are not offered federally. For example, the first DWBR that was passed in New York in 2010 gives domestic workers the following protections: the right for domestic workers to be paid time-and-a-half for every hour of overtime they work; the right to a day of rest after seven days, or overtime if a domestic worker agrees to work this day; three paid days of rest annually; and protection under the New York State Human Rights Law for racial discrimination and sexual harassment grievances.
The Hawaii DWBR, for example, provides similar overtime pay and wage protections. However, it also ensures that domestic workers cannot be discriminated against based on “race, sex, sexual orientation, age, religion, color, ancestry, disability, or marital status,” addressing the lack of federal protections for domestic workers due to their exclusion from the Civil Rights Act of 1964.
Addressing discrimination based on race and gender is a crucial issue for domestic workers, who are predominantly women of color. A local, African-American domestic worker identified as “Rosa” told LEO that she had faced such discrimination in her workplace. Rosa, who has worked as a nanny for numerous local families over the years, was told by the father of a household where she was employed that her style of dress was “sinful and disgusting” and encouraged “impure thoughts” in his eight-year-old son.
While this family didn’t explicitly tell Rosa that she would be terminated if she didn’t change her style of dress, she conformed in order to prevent termination or other retaliation. If Rosa worked in a state like Hawaii with a DWBR, there might not be any guarantees for her, however, she would at least have a channel to file a grievance.
Issues plaguing local domestic workers support national findings
Unfortunately, the findings of the “Home Economics” study parallels issues Louisville-based domestic workers are facing. Nonetheless, the local domestic workers we spoke with emphasize that they both enjoy and see great importance in the work they do.
“Our jobs are important. People don’t realize how important the work is that nannies, gardeners, maids and other domestic workers do. My boss, who is a doctor, wouldn’t be able to go to her office daily and help people if I didn’t take care of her kids,” said a Louisville domestic worker identified only as “Mary.” Mary works as a nanny for one family exclusivley in the Louisville area. “We contribute to the Louisville economy by allowing people to go do their jobs. For people to want to pay someone under the minimum wage to take care of their children just baffles me,” Mary continued.
While Mary said she is happy with her employment situation, Rosa said, “I endured near constant racist comments from two little boys.”
Rosa said the parents of the children didn’t do anything to mitigate the situation. “They would say things like, ‘Daddy says people like you have never seen the amount of money he makes,’ and, ‘Daddy says people like you steal.’” Rosa said the children also asked if she had stolen her car, and she stated that when she would cook, the children would stick out one hip, place a hand on their hip and say, ‘Girl, what you cookin’?’” These were “clear pantomimes of blackness,” this local domestic worker stated. “All I was asking the parents to do was to sit down and have a conversation with their kids, but the racist comments continued until I had to quit due to the stress, as they never had a talk with us about it.”
Research data shows that harassing behavior like this is often the norm for unregulated domestic work. The “Home Economics” report states that “Interviews with domestic workers reveal that they often endure verbal, psychological, and physical abuse on the job — without recourse. Domestic workers, who are unprotected by contracts and laws available to other workers, fear employer retaliation.”
Another common issue with domestic workers is blatant wage theft, or late payments, which makes tracking paycheck accuracy difficult. “Sometimes families I would work for would pay me four to five weeks late. This kind of thing was common, and the amounts would often be wrong,” Rosa told LEO. “If you’re not confident enough to confront your boss, it’s an easy way they can get away with not paying you what you’re owed.”
Local labor lawyer Ben Basil said this is a clear violation. “The Fair Labor Standards Act does cover the wage provision for domestic workers, so this would absolutely constitute wage theft,” Basil told LEO. “People have to be paid for the time they work. Those are the rules.”
“Emma,” a Louisville native, is a domestic worker for a family with two teenage children. She describes her job as miscellaneous housekeeping, including cooking, cleaning and running errands for the family. Emma recalls a time when her check was “half of what it was supposed to be.” This coincided with the week she went into labor with her first-born child. While she advocated for herself and got the money she was owed according to the work she performed, she worried about the implications for other domestic workers in this situation. “If someone isn’t confident enough to confront a boss, then their employer is probably going to get away with not paying a worker what they’re owed,” Mary said.
Mary’s employer offered her what she called a “nanny contract.” While she says she’s happy with her employment, as mentioned, a majority of domestic workers with contracts reported being terminated for raising issues with contract violations. Mary spoke of industry standards for nannies. “I know a lot of nannies who aren’t getting paid what they’re supposed to be getting paid, but they don’t realize it,” Mary stated. “There are websites that have pay calculators that tell you what you should be making, depending on where you live. They’ll tell you what you should be getting paid. But nothing’s enforced.”
Rosa, also a nanny, thought the notion of industry standards was laughable. “Yeah, a website’s fine. That’s nice and all, but as someone who’s worked in the industry for years, I can tell you there are no enforceable industry standards,” she told LEO.
A lack of benefits was another issue for domestic workers. Domestic workers who talked to LEO reported going to work with the flu and having to go back to work days after giving birth due to having no paid leave. And while domestic workers told LEO they like the flexibility of their work, none were provided insurance. “I was told when I was hired I wouldn’t get insurance, so as of now I don’t have any health insurance,” Mary said.
The work is still devalued. “I think the historical oppression of women has led to a real devaluation of this work, which is still regarded as ‘women’s work,’” Rosa told LEO. “I have people in my family who say, ‘Your job’s not a real job.’”
Basil agrees and sees continuity between the historical exclusion and present-day devaluation of the work. “What is called ‘women’s work’ is devalued, as it was when bills excluded domestic workers. It’s seen as something lesser than paid work. In 1935, when the NLRA excluded domestic workers, you’re talking about women, primarily African-American women,” Basil stated.
More than laundry
While domestic work is often dismissed as “women’s work” of little economic value, Emma articulated the larger issues at stake: “We’re helping kids learn social interactions, learn how to be good citizens and good people. Obviously that has a larger impact than someone’s laundry getting done.”
Rosa discussed the ability to be able to talk about social justice issues with children: “I talked to children who had no respect for women, people of color, and were clearly bullying others in school. I got to have conversations with those children about those issues, when there weren’t other adult influences in their life doing that. I feel really proud of that work.”
“We’re molding these children. In many cases we’re raising these kids. This is important work for society,” Mary told LEO. “We’re taking care of work on the backend so people can go do their jobs.”
Vast amounts of reform and domestic worker-controlled organizing is necessary for just conditions. However, the results of domestic workers’ grassroots struggle, in the form of innovative organizing and life-changing reforms at the state level, are becoming all the more visible. This majority woman and immigrant workforce is proving that solidarity, rather than division, is improving the lot and raising consciousness for this forgotten swath of the working-class. •