ILO: U.S.DOMESTIC WORKERS TO GET A DAY OFF?

International Labor Organization’s World of Work Magazine

#68 – April 2010

Decent work for domestic workers

NEW YORK – According to the US census there are currently over two million people engaged in domestic service in the United States – a number that is probably a significant underestimate. Overworked, underpaid and, until fairly recently, isolated, domestic workers do not even have the right to organize, clinging to the coat tails of labour federations to see their few rights defended.

The plight of domestic workers caring for the sick and the elderly is of particular concern. According to a recent report by the Alliance for Retired Americans, the American Association for People with Disabilities, and the labour federations AFL-CIO and “Change to Win”, roughly half of all home-care workers work full time year round. They are twice as likely as other workers to receive food stamps and to lack health insurance, while one in five lives below the poverty level.

According to the Service Employees International Union (SEIU), a leading labour organization, 90 per cent of home-care workers are female, and one in four heads a household with children. “These people are engaged in essential work that enables others to go out and make a living,” says Priscilla Gonzalez, director of Domestic Workers United (DWU) a grassroots organization based in New York, “and yet they are denied a living themselves.”

The last time US labour law was changed to expand coverage for domestic workers was in 1974 with the Fair Labor Standards Act (FLSA), but employees providing “companionship services” to the aged and disabled were left out (“exempted” in the language of the document) – deemed too casual and informal for legal protection. Since 1974 the world has changed, and both the numbers of home-care workers and the services they provide have grown, but the law has failed to grow with them.

The last time the FLSA’s so-called domestic worker “exemption” was challenged was in 2007 when the Supreme Court ruled that home health-care workers were not eligible for the overtime and minimum wage protections extended to others. And the domestic worker exemption is but one of a list of similar exclusions. As already mentioned, domestic workers in the United States have no right to organize under the National Labor Relations Act (NLRA). They have no protection under the Occupational Safety and Health Act (OSHA). They have no protection under civil rights laws.

… Last summer fifteen US senators sent an open letter to Labor Secretary Hilda Solis, calling for the repeal of the exemption, and arguing in favour of a national minimum wage and the extension of federal overtime requirements to domestic workers. Solis, the daughter of an immigrant domestic worker herself, has been supportive of the idea of scrapping the exemption, referring to it as a “loophole” which should be closed.

How soon that will happen is anyone’s guess, but domestic workers may not have to wait for Congress to get round to changing the law because change may be coming state by state, starting in New York where a comprehensive Domestic Worker Bill of Rights looks set to pass in the State Senate in the coming month or so. If passed the legislation will grant housekeepers, nannies and caregivers the same rights that the majority of US labour enjoys, notably: time-and-a-half for every hour over 40 hours per week; one day off per 7-day calendar week; a limited number of paid vacation days, holidays, and sick days; advance notice of termination or severance pay in lieu of notice. The bill will also give domestic workers the ability to sue employers where these provisions are not met. The bill has been debated within the State legislature for more than six years, and has already passed in the State Assembly. The State Governor has pledged to sign legislation once it reaches his desk.

“It’s going to put domestic workers on an equal footing with everyone else,” says DWU’s Gonzalez, one of the activists who have been fighting for change for a number of years. “The new laws are also going to send a strong message to the work force about being recognized and protected under the law.” Some domestic workers are already getting the message.

“The Bill of Rights will put an end to decades and decades of exploitation,” says Patricia Francois, a nanny who spent six-and-a-half years looking after the daughter of a wealthy Manhattan couple until she was fired in December of 2008 after an altercation (Francois claims that her employer punched her in the face, a claim the employer disputes).

For Francois the importance of the bill goes beyond any specific rights it may include. “It will give us back our dignity and respect,” she says.

And the bill’s impact will not be limited to New York. Andrea Cristina Mercado, Lead Organizer of Mujeres Unidas y Activas (MUA), a group of San Francisco/Oakland-based activists – says that as a result of the New York campaign, MUA has decided to push for a legislative Bill of Rights campaign in California. “This year we are going to be introducing a resolution in support of domestic workers at the State level and we are hoping that will help us build momentum for a legislative campaign in 2011,” she says. The last time groups like MUA tried to effect change in California was in January 2006 when they managed to get the so-called “Nanny Bill” introduced in the California Assembly.

The bill was passed by the Assembly and the Senate but was then vetoed by the Governor of California. This time Mercado believes things will be different: “In 2006 we were just focused on rights for overtime and fines for abusive employers,” she says. “This time, we will take an approach similar to the one used in New York and will be going for a comprehensive Bill of Rights, an inspiring platform that gets people stirred up.”

And it is not just the approach to campaigning that has changed. The big difference between now and 2006 is that grass-roots domestic labour movements in the United States have become organized. Domestic workers may be banned from forming a union, but there is nothing to stop cooperatives and associations coming together to exchange information and develop strategy. And this is exactly what they have been doing, beginning in June of 2007 when a small group of domestic workers came together at a National Domestic Worker Gathering in Atlanta, Georgia. On the last day of the gathering the participants took the decision to form a National Domestic Worker Alliance (NDWA) to give domestic workers a voice and to draw attention to their plight. “There were all these local campaigns and initiatives going on, but we wanted to create a coherent whole – and not to have to reinvent the wheel each time,” says NDWA lead organizer Jill Shenker.

The basic idea behind the NDWA was that domestic workers in one state could learn lessons from their counterparts in another; the Domestic Worker Bill of Rights is the first indication of how powerful that approach can be. “The California coalition has been inspired by what their sisters in New York have achieved,” says Shenker, reporting that a comprehensive bill called the California Domestic Worker Bill of Rights (CDWBR) has already been drawn up. The NDWA has also provided the participants with a sense of connection and of course empowerment. “We are not just about tinkering with the labour code,” says Shenker. “What we’re trying to do is build a social movement.”

… Founded by 13 organizations, the NDWA now comprises over 30, and it is only a matter of time before other states, notably Colorado, Illinois, Iowa, Maryland, New Hampshire, Oregon, Rhode Island and Washington pick up the Bill of Rights idea. “We’re really excited about what’s coming down the pipeline,” says DWU’s Gonzalez. “Everyone is watching what is happening in Albany.” Soon they’ll be watching what happens in California.

SAMPLE BULLYING POLICY

Workplace Bully Policy

Ideally an employer would build upon this template, adding important  details, such as which company representative is designated to receive employee complaints and where an employee can go to find  moreinformation. 

Company X considers workplace bullying unacceptable and will not tolerate it in any circumstances.

Workplace bullying is behaviour that harms, intimidates, offends, degrades or humiliates an employee, possibly in front of other employees, clients or customers. Workplace bullying may cause the loss of trained and talented employees, reduce productivity and morale and create legal risks.

Company X believes all employees should be able to work in an environment free of bullying. Managers and supervisors must ensure employees are not bullied.

Company X has grievance and investigation procedures to deal with workplace bullying. Any reports of workplace bullying will be treated seriously and investigated promptly, confidentially and impartially.

Company X encourages all employees to report workplace bullying.

Managers and supervisors must ensure employees who make complaints, or witnesses, are not victimized.

Disciplinary action will be taken against anyone who bullies a co-employee. Discipline may involve a warning, transfer, counselling, demotion or dismissal, depending on the circumstances.

The contact person for bullying at this workplace is:

Name:______________________________________________

Phone Number: _______________________________________

* Adapted by the Ontario Safety Association for Community & Healthcare from the Commission of Occupational Safety and Health, Government of Western Australia. (Toronto, Canada, 2009)

Other Federal Laws

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

Some experts say the Occupational Safety and Health Administration should take the lead on combating workplace bullying.*  There is overwhelming evidence that workplace bullying can lead to serious injury and even death.  In fact, a term has been coined for workers who are driven to suicide as a result of bullying – “bullycide.”  In several other countries, workplace bullying is considered a health and safety issues and is regulated by a federal agency like OSHA. 

The Occupational Safety and Health Administration in May 2011 adopted a safety program for its own workers that includes a workplace anti-bully policy. The policy is contained in a 278-page document, the OSHA Field Health and Safety Manual,  which outlines safety practices for OSHA’s field offices. It was drafted in cooperation with the National Council of Field Labor Locals, a union that represents OSHA workers.

OSHA’s workplace bullying policy is significant because the General Duty Clause of the Occupational Safety and Health Act of 1970 requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees … .” However, OSHA has not enforced that provision with respect to workplace bullying.

The stated purpose of the workplace bullying policy adopted by OSHA for its own workers,  contained in the manual’s “Violence in the Workplace” chapter. is: ”To provide a workplace that is free from violence, harassment, intimidation, and other disruptive behavior.”

Here is the OSHA General Duty Clause, Section 5(a)(1) SEC. 5:

Duties

(a) Each employer —

(2) shall comply with occupational safety and health standards promulgated under this Act.

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees …

*See Susan Harthill. “The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act.” University of Cincinnati Law Review 78.4 (2010): 1250-1306.

WAGE AND HOUR LAWS

The Fair Labor Standards Act (FLSA) does not address workplace bullying per se but it can be used to combat certain types of abuse. The FLSA establishes minimum wage, overtime pay, record keeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Covered nonexempt workers are entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek.  The FLSA is administered by the U.S. Department of Labor Wage and Hour Division  If one aspect of the bullying campaign is failure to pay proper wages or overtime, for example, the FLSA is one potential remedy.

THE NATIONAL LABOR RELATIONS ACT

The National Labor Relations Act  (NLRA) was passed in 1935 to protect the right of employees in the private sector to create labor unions, engage in collective bargaining and to take part in strikes. The act is also known as the Wagner Act, after its sponsor, Sen. Robert F. Wagner.  The act is regulated by the National Labor Relations Board.

 Specifically, the National Labor Relations Board protects the rights of employees to engage in “protected concerted activity,”  which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.  A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

A few examples of protected concerted activities are:

  • Two or more employees addressing their employer about improving their pay.
  • Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
  • An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

Most employees in the private sector are covered by the NLRA. However, the Act specifically excludes individuals who are employed by federal, state, or local governments, agricultural laborers, some close relatives of the employer, domestic servants in a home, independent contractors, employers subject to the Railway Labor Act, etc.

FAMILY AND MEDICAL LEAVE ACT

The Familiy and Medical Leave Act (FMLA offers potential help for employees who are suffering health effects from workplace abuse.  Administered by the Wage and Hour Division of the U.S. Department of Labor, it  entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

Twelve workweeks of leave in a 12-month period for:

-the birth of a child and to care for the newborn child within one year of birth;

-the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;

-to care for the employee’s spouse, child, or parent who has a serious health condition;

a serious health condition that makes the employee unable to perform the essential functions of his or her job;

– any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

Twenty-six workweeks of leave during a single 12-month period to care for a covered service member with a serious injury or illness who is the spouse, son, daughter, parent, or next of kin to the employee (military caregiver leave).

Federal Discrimination Laws

Most workplace bullying falls outside the parameters of federal discrimination laws. However, workplace abuse may be the result of illegal discrimination and, if so, you may be able to file a lawsuit seeking damages from your employer. Federal laws prohibit discrimination on the basis of age, disability, national origin, genetic information, pregnancy, race/color, religion and sex. These laws generally cover employees, applicants for employment, former employees and applicants to, and participants in, training and apprenticeship programs. An employer may include private sector and state and government entities, depending on the law. These laws also make it illegal to retaliate against a person who has complained about an equal employment opportunity violation, or participated in filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the applicable statute. The U.S. Equal Employment Opportunity Commission (EEOC) enforces most of these laws (Go to: www.eeoc.gov). Here is a list of major federal laws relating to employment discrimination: RACE AND COLOR, RELIGION, NATIONAL ORIGIN, OR SEX

  • Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate on the basis of race, color, religion, national origin, or sex. It is also illegal to harass a person because of that person’s race, color, national origin or sex. Harassment goes beyond simple teasing or an offhand comment; it generally must be severe and frequent, creating an hostile or offensive work environment or resulting in an adverse employment decision (such as being fired or demoted). The law also requires that employers reasonably accommodate applicants’ and employees’ sincerely held religious practices, unless doing so would impose an undue hardship on the operation of the employer’s business.

PREGNANCY

  • Title VII was amended by The Pregnancy Discrimination Act of 1978 (PDA), which makes it illegal to discrimination against a woman because of pregnancy, childbirth or a medical condition related to pregnancy or childbirth.

EQUAL PAY

  • The Equal Pay Act of 1963 (EPA) makes it illegal to pay different wages to men and women if they perform the same work in the same workplace. The jobs must be substantially equal and all forms of compensation are covered, including salary, overtime pay, bonuses, stock options, etc. The EPA protects both men and women.
  • Title VII, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans with Disabilities Act of 1990 (ADA) also prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age or disability. Unlike the EPA, there is no requirement that the jobs be substantially equal.  The Lilly Ledbetter Fair Pay Act of 2009 establishes that each paycheck that contains discriminatory compensation is a separate violation regardless of when the discrimination began.

AGE DISCRIMINATION An egregious double standard exists for older workers in federal discrimination law. The Age Discrimination in Employment Act,  29 U.S.C. §§ 621 et seq., makes it “unlawful for an employer . . . to discharge any individual . . . because of such individual’s age. Id. at § 623(a).” With any other type of discrimination lawsuit, it is enough to show that you were the victim of illegal discrimination.  But not so with age discrimination claims. To prevail on an ADEA claim, the U.S. Supreme Court saysyou must establish that “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 129 S.Ct. 2343, 2351 (2009).  In a Title VII discrimination lawsuit – when the grounds are discrimination on the basis of  sex, race, color, national origin or religion – it is enough to show the discrimination was a motivating factor for the adverse job action (i.e. demotion or dismissal). So … In an ADEA claim, if your employer can point to any other reason for termination– and who hasn’t been late or disagreed with their boss – your lawsuit may be thrown out of court by a judge before it even gets to a jury.  This, despite he fact that you can show that you were the victim of blatant and reprehensible age discrimination. Why are older Americans treated like second class citizens?   I suggest you ask your Congressional representative and U.S. Senator.  Personally, I can’t think of one good reason except, perhaps, that big business has better lobbyists. DISABILITY

  • Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA),  prohibit employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments. A disability is a physical or mental impairment that substantially limits one or more major life activities. Employers are required to reasonably accommodate the known physical or mental limitation of an otherwise qualified individual with a disability who is an applicant or an employee, unless doing so would impose an undue hardship on the operation of the employer’s business.
  • Sections 501 and 505 of the Rehabilitation Act of 1973 make it illegal to discriminate against a qualified person with a disability in the federal government.

GENETIC INFORMATION

  • The Genetic Information Nondiscrimination Act of 2008 (GINA), which took force on November 21, 2009, makes it illegal to discriminate against employees or applicants because of genetic information. Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about any disease, disorder or condition of an individual’s family members.

SEXUAL HARASSMENT

  • The Equal Employment Opportunity Commission promulgated guidelines (Sec. 1604.11) pursuant to the adoption of Title VII of the Civil Rights Act of 1964 that make sexual harassment illegal. This includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:  made either explicitly or implicitly a term or condition of an individual’s employment; submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting the individual, or; such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. With respect to fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) know or should have known of the conduct, unless it can show that it took immediate appropriate corrective action.

CITIZENSHIP STATUS AND NATIONAL ORIGIN

  • Claims of discrimination based on citizenship status and national origin are covered both by Title VII of the Civil Rights Act of 1964 and by the Immigration Reform and Control Act of 1986 (IRCA).
  • The IRCA states that employers cannot discriminate because of national origin against U.S. citizens, U.S. nationals, and authorized aliens. Also, employers cannot discriminate on the basis of citizenship status against U.S. citizens, U.S. nationals, and the following classes of aliens with work authorization: permanent residents, temporary residents (that is, individuals who have gone through the legalization program), refugees, and asylumees. For example, citizenship verification must be obtained from all employees, not just “ethnic” looking employees.The IRCA is implemented by the U.S. Department of Justice, Civil Rights Division, Office of the Special Counsel for Immigration Related Unfair Employment Practices.
  • Title VII prohibits discrimination on the basis of national origin. It bars discrimination against an individual because of birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group. This law is administered by the EEOC.