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James Lin

excerpted from: James Lin, A Greedy Institution: Domestic Workers and A Legacy of Legislative Exclusion, 36 Fordham International Law Journal 706 (March, 2013) (Student Note) (208 Footnotes)


Over the past several decades, the US domestic labor force has experienced a surge in low-wage work, owed partly to the economic downturns of the late 1980s and 2000s. Domestic household services, the segment of service work characterized as remunerated household-related labor, is one industry that has been affected by this labor market shift. Commonly, individuals in this sector include cleaners, cooks, housekeepers, and nannies. The household domestic services industry has grown considerably as a result of this labor market shift, fueled by an influx of low-wage workers from non-US countries in the Caribbean, Latin America, and Southeast Asia. The trend is likely to continue.

Notably, this group of individuals falls outside the ambit of several important pieces of legislation that could otherwise offer them workplace protections. For example, the National Labor Relations Act (“NLRA”), one of several important laws created during the New Deal era, protects an employee's right to collectively bargain with her employer by shielding her from certain workplace practices intended to discourage or handicap bargaining activity. However, domestic workers are not similarly protected. As a result, they are left with a veritable handicap should they attempt to voice their concerns regarding the employer-employee relationship.

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Domestic workers face notable challenges within the workplace, unlike any other group of workers in the United States. Part I.A provides an overview of the industry and notes that domestic workers stand in a unique position that render them particularly vulnerable relative to other groups of service workers. Next, Part I.B discusses international labor protections available to domestic workers. Finally, Part I.C details relevant legislation in the United States, including a detailed discussion of the domestic worker exclusion within the NLRA.


A. “The lowest rung of legitimate employment”

Historically, domestic work in the United States has been the employ of the poor and the disenfranchised. Owing in large part to the nature of the job, it has never occupied a coveted position within the American social hierarchy. Not only did domestic workers mop floors and clean toilets, but they were also expected to dedicate a significant portion of their time in doing so. Sociologist Lewis Coser pointed out a growing trend during the New Deal era, where the responsibilities for jobs of similar work required a near-total commitment from the worker herself. Dubbed ““greedy institutions,” these occupations were those that did not “rest content with claiming a segment of the time, commitment, and energy of the servant,”but instead demanded “full-time allegiance.” This is as true today as it was nearly a hundred years ago, when the enactment of such important New Deal legislation, like the NLRA, afforded new and unprecedented protections for US workers.

Across the United States, ninety-five percent of the estimated 1.8 million domestic workers are women, are not born in the United States, or are persons of color. When narrowed to specific geographic areas within the country, this proportion becomes even more stratified. For instance, in New York City, ninety-three percent of the estimated 200,000 domestic workers are women, but ninety-five percent are racial minorities, and ninety-nine percent are from countries other than the United States. An extensive study in San Francisco reflects this trend as well, finding that ninety-nine percent of domestic workers were non-American immigrant workers. Ninety-four percent of this portion were Latina, and all but two percent of the domestic worker population was female. The trend repeats itself in other areas of the country like Chicago and Los Angeles. Importantly, however, this distribution reflects the pattern around the world, as scholars and advocates estimate that close to 100 million women and young girls earn their living through some form of domestic work.

What more, the employers who typically hire domestic workers seldom adhere to lawful labor practices. A survey conducted throughout New York City, Chicago, and Los Angeles found that forty-one percent of domestic workers were not paid the minimum wage, as required by state and federal law. Eighty-three percent of home health care workers and ninety percent of child care workers worked past the standard work week without overtime compensation. The yearly earnings for every one of four domestic workers in New York City were not enough to meet the poverty line.

Employer abuses in the industry are common because safeguards like grievance procedures, review committees, and appeals boards do not exist within a household. Reports indicate that one-third of the 15,000 to 20,000 annual victims of labor trafficking in the United States are domestic workers. Oftentimes, the only options for a worker in that position are to either accept the abuse or quit altogether. Labor scholars have described this as modern day institutionalized slavery that, in unregulated corners of the world, can bear little discernible distinction between legitimate employment and servitude.

Domestic workers' experiences in the United States are part and parcel of a global narrative. The International Labour Organization (“ILO”), the United Nations agency tasked to oversee international labor issues, reports a shifting trend in female migrant labor where, increasingly, women are migrating not to join their partners, but instead for better employment opportunities otherwise unavailable in their home countries. To facilitate their passage, there has been a proliferation of illegal and unlicensed employment recruiters that operate in the shadows of regulated labor practices. Incidents of labor trafficking are common among these recruiters, who exploit unsuspecting female migrants seeking employment abroad. This is significant because domestic workers, in particular, comprise the largest group of female migrant workers.

In Malaysia, for example, some employment recruiters explicitly advise employers to retain the worker's passport and to forbid them “to talk or converse with others, walk alone, open the door to anyone, especially when they are alone in the house.” The onus for enforcing workers' employment contracts falls on both the domestic worker and the employer. Employers hiring domestic help must place a monetary security bond to guarantee the worker's labor permit. That bond is forfeited in the event that the worker leaves the employer. Consequently, the bond “can have the effect of encouraging employers who do not want to lose their money to place heavier restrictions on the personal freedoms of migrant domestic workers.” These restrictions include confining the worker to the home, and giving her little rest to minimize the opportunity she can have to communicate with others.

Employers in Japan and South Korea likewise institute pseudo-importation schemes to circumvent domestic laws that set workplace standards for pay, hours, and benefits. The practice largely revolves around labeling foreign domestic workers as “trainees,” rather than as bona fide employees, in order to exploit a loophole in labor laws that would otherwise require employers to adhere to higher labor standards. As a trainee, the average foreign domestic worker in South Korea receives sixty to seventy percent less pay than a similarly situated South Korean citizen. She also does not receive any compensation for overtime work.

Most notably, employment is often brokered through an “onward managing agency,” a middle man that periodically takes a portion of the worker's earnings as exchange for its services in securing her employment. These countries join an international community that explicitly excludes domestic workers from respective national legislation--countries that include, but are not limited to, Costa Rica, Croatia, Grenada, Norway, Japan, Jordan, Korea, and Malaysia. That the United States also suffers from shortcomings for domestic workers protections is symptomatic of a global norm.


B. International Protections

Several important international treaties address workplace protections for domestic workers, and, in theory, place a floor on permissible employer conduct. Part I.B.1 discusses the International Covenant on Civil and Political Rights (“ICCPR,” or the “Covenant”) and how it relates to the state of domestic worker protections in the United States. Part I.B.2 then discusses the Convention Concerning Decent Work for Domestic Workers (“Domestic Worker Convention,” or the “Convention”) and addresses what the new Convention would mean for domestic workers.

1. International Covenant on Civil and Political Rights

ICCPR Article 2 obligates States to undertake steps “necessary to give effect to the rights” to assemble and associate. Under this understanding, labor practices within the United States not only run counter to Article 2, but also Articles 21 and 22 because carve-outs within the NLRA deliberately exempt domestic workers from unionizing protections. Among other things, Article 2 obligates State parties to legislate where necessary, to give full effect to the rights recognized within the Covenant. It also obligates State parties to protect those rights “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The Covenant goes on to enumerate specific rights, such as of peaceful assembly (Article 21) and freedom of association (Article 22). The Human Rights Committee, the UN body that monitors the ICCPR's implementation, has interpreted similar language in other treaties as obligating the State to take both affirmative and negative actions toward protecting those enumerated rights. Similarly, the European Court of Human Rights interpreted the scope of the right to peaceful assembly and the right to freely associate broadly, as including trade unions within their contexts.

But though particular ICCPR violations may well occur within the United States, a consequent problem remains with enforcement. The United States has placed a declaration on the Covenant restricting its enforceability within the domestic sphere. Because the treaty is not self-executing, an employer found in violation of any of its provisions would not be subject to jurisdiction in any US court. For the same reason, the ICCPR does not create an automatic private cause of action on behalf of domestic workers who are denied associational rights, or any other rights enumerated within the ICCPR. Consequently, the ICCPR is a strong instrument with enforceable provisions in the international arena, but the existence of non-self-executing provisions plagues its enforcement within US courts.

2. Convention Concerning Decent Work for Domestic Workers

Discussed above, domestic workers around the world share many of the same traits as do domestic workers in the United States. In June 2011, the ILO adopted the Convention Concerning Decent Work for Domestic Workers, a historic set of international standards intended to place a floor on minimum working conditions for millions of domestic workers worldwide. Though official estimates place the number of global domestic workers at 53 million, the prevalence of undocumented workers engaged in informal labor economies raises that estimate closer to nearly twice that, 100 million. In some developing countries, the concentration of domestic workers within the workforce can be significant, where nearly twelve percent of all workers work within a household in one form or another. Estimates suggest that over half of domestic workers worldwide do not work with maximum weekly hour limits; forty-five percent are not given any time off during the week; and over a third of female workers have no legal entitlements to maternity leave.

The Convention aims to correct these disparities. For instance, countries that ratify the Convention are obligated to enforce employment contracts to specify certain wage and hour restrictions on a domestic worker's labor. If, in a particular country, a minimum wage exists for other low-wage workers generally, the Convention requires that wage floor to apply for households hiring domestic workers also. Additionally, the Convention limits the maximum hours of work per day, enacts new protections against child labor practices, and obligates Convention parties to create appropriate enforcement mechanisms. Country delegates at the June 2011 ILO conference voted in favor of the Convention, passing it with 396 votes in favor, and 16 votes against, sending a strong global voice in support of these measures.

Both of these international treaties--the ICCPR and the Domestic Worker Convention--offer opportunities to increase labor protections to domestic workers. At a minimum, they evidence a strong international push to recognize the need to address problems in a growing segment of low-wage work. Of course, national governments still hold considerable discretion in deciding how to approach those problems in accordance with the methods they see fit. But, these treaties lend valuable guidance to governments in informing them of the prevailing labor standards within international community.


C. A Legislative Vacuum

While domestic workers in the United States comprise a substantial portion of the low-wage services sector, the US legislature has been slow to afford them the same protections it does to other occupations. Given the unique position of this group of workers, one might expect that Congress would be receptive to regulate against abuses in much the same way it has to prevent child labor, set minimum wages, and legislate workplace discrimination. In fact, though, legislative movement toward greater equality on this front has been nearly non-existent. This Part details the absence of legislative protection in this area.

The New Deal era of the mid-1930s was arguably the most transformative period for labor rights in the United States. Growing alarm over the Great Depression, a period of extreme economic turmoil within the United States, spurred Congress to enact legislation to stave off economic collapse. As part of the national plan, Congress was quick to enact legislation to bolster workplace protections for laborers like steel, telephone, and textile workers.

Importantly, however, these pieces of legislation all excluded certain groups of workers from their coverage. Some of these groups included railroad and airline workers, independent contractors, and, notably here, domestic workers. In 1933, Congress passed the National Industrial Recovery Act (“NIRA”) to regulate market standards and promote fair competition when securing both minimum wages and maximum working hours among different industries. Two years later, it passed the Social Security Act (“SSA”), the precursor to the system of social welfare and insurance programs in place in the United States today. In 1938, Congress passed the Fair Labor Standards Act (“FLSA”) to set a national minimum wage and to mandate elevated wage rates for overtime hours. As originally passed, none of these pieces of legislation included domestic workers in its purview.

Notably, Congress passed the National Labor Relations Act (“NLRA”) in 1935 to confer protections on workers engaging in collective bargaining and unionizing activity. The ability to form unions was a powerful tool for workers who were unable to successfully lobby their employers for greater workplace benefits and protections on their own. The US labor union movement granted millions of workers such benefits as federal anti-discrimination laws and employee health insurance coverage. The federal statute offered a vehicle through which individual workers were allowed a seat at the bargaining table, giving them the opportunity, then, to voice their concerns regarding the employer-employee relationship.

Like the many landmark pieces of legislation passed during the New Deal era, however, the NLRA also excluded domestic workers from its purview. This legislative exclusion gave the employer wide latitude when responding to a domestic worker who asserted her right to organize for better wages or overtime compensation. For example, the exclusion permitted an employer to terminate a domestic worker, even if done in direct retaliation for participating in union activity. As a result, the exclusion effectively took away the domestic worker's right to unionize because without these protections, the cost of unionizing was far too high. Consequently, exclusion had the effect of disincentivizing workers from voicing their protest over inadequate standards and protections in the workplace.

Today, federal workplace protections for domestic workers remain meager. FLSA, for example, had initially written out domestic workers from its coverage by using the same language that was used in the NLRA. Though it was amended in 1974, the statute continues to exclude large portions of the domestic worker industry. This comes mostly from FLSA's outdated “companionship” exemption that excludes domestic workers who provide companionship services to individuals who are unable to care for themselves. The Occupational Safety Health Act, a landmark piece of legislation that set federal standards for health and workplace safety in the federal government and the private sector, similarly excludes domestic workers entirely from its purview, “[a] s a matter of policy.” Lastly, domestic workers are excluded from federal civil rights laws, like Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. These laws only cover businesses that employ a certain minimum number of employees. Because very few household employers meet these jurisdictional minimums, they are rarely considered employers for the purposes of these civil rights statutes.

Domestic workers remain excluded from the NLRA even now, nearly eighty years later. Under current laws, for instance, attempts to unionize not only run the risk of losing a job, but often also mean losing hope for permanent immigrant status within the United States. Given this, a domestic worker may well be less willing to voice her right to unionize.

The NLRA excludes domestic workers from its protections primarily in two ways. First, it does so explicitly within its statutory language. Its definition of “employee” excludes “any individual ... in the domestic service of any family or person at his home.” Second, the National Labor Relations Board (“NLRB”), the federal agency created by the NLRA to enforce the statute, excludes domestic workers by enforcing the NLRA's purview discretionally. Though it does not place a jurisdictional minimum on the number of employees that an employer must have--as does the FLSA or OSHA-- it does limit its power only to “cases involving enterprises whose effect on commerce is substantial.” Household employers who hire domestic workers are not included within the enumerated limitations, and as a result, neither are domestic workers. Consequently, even if the language in the NLRA were tweaked so that domestic workers were no longer explicitly excluded, advocates would still have to jump over the NLRB's discretionary hurdle. Given these considerations, the legislative obstacles on the federal plane are substantial.

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Summary

The movement toward overturning NLRA exclusions is slow, but the gradual trend might not be too surprising given the historical legislative pedigree for domestic worker labor in this country. Yet as some courts are now recognizing, the reasons to exclude domestic workers from labor protections are mired in inadequate and anachronistic notions of gender roles in this country. Whatever relevance such a line of reasoning might have had eighty years ago during the NLRA's passage, that reasoning is unsatisfying today and is an insufficient justification for either the judiciary or the legislature to deny equal protections to a group of people that arguably deserves them most.

 


 

J.D. Candidate, 2013, Fordham University School of Law; B.A., 2006, University of Pennsylvania.

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