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Domestic Workers Lack Adequate Legal Protections

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Mr. and Mrs. Ortega* worked and lived in the D.C. home of Ms. Glasson* for the last 7 years. The Ortegas each worked an average of 60 hours a week, cooking, cleaning, and driving Ms. Glasson around town. Last fall, they were fired without notice, given two weeks severance and immediately evicted from Ms. Glasson’s home. Ms. Glasson was gracious enough to have a U-Haul waiting for them. The Ortegas were never paid overtime.

I wish I could say that this story was uncommon or shocking, but the truth is that I hear some version of this story several times a month. To make matters worse, protecting employees like the Ortegas is difficult because domestic workers are routinely exempt or excluded from many basic workplace laws. For example, the Ortegas, as live-in domestic workers, were not entitled to overtime pay (time and a half their regular rate) for the extra hours they worked over 40 each week, unlike many low-income workers under the Fair Labor Standards Act. Instead, they were only entitled to straight time. Moreover, employers like Ms. Glasson can further underpay domestic workers by deducting things like a portion of the fair market rental value of the housing provided. Try to imagine what the fair market rental value of a room in a $1 million home might be.

Domestic workers are also not protected by the National Labor Relations Act and, thus, have no legally protected right to organize. They are excluded from the protections of the Occupational Safety and Health Act. And the Civil Rights Act (commonly referred to as Title VII), which provides protection from unlawful discrimination, and the Family Medical Leave Act, which provides limited time off to care for oneself or an immediate family member in certain instances, generally do not apply to domestic workers because small employers are exempted from these laws.

Given the lack of legal protections for domestic workers, it is not surprising that the vast majority of these workers are immigrant workers who are paid close to or less than the minimum wage. The Ortegas were lucky. They were paid $10 an hour. A survey conducted by the Montgomery County Council in Maryland found that half of its survey respondents were paid less than Maryland’s minimum wage and 75% reported not receiving overtime pay. And a study by a group in New York City, Domestic Workers United, reported that over 99% of domestic workers in New York were foreign born.

Montgomery County Maryland and New York City have passed “nanny bills,” which take a first step in protecting these workers. The Montgomery County law requires an employer to state the terms and conditions of employment in a written contract and also mandates certain living conditions for live-in domestic workers. The New York City law requires employment agencies to inform domestic workers about their workplace rights and requires employers to sign a statement saying they understand the rules on minimum wage, overtime and Social Security.

While small, these gains are important because most of these workers labor in private homes, where they have little to no access to workplace rights information. For obvious reasons, private home owners are not required to hang those laminated posters in their dining rooms, but there is nothing from stopping the government from requiring that the information be handed to the worker.

Last year, a Maryland jury ordered Redskins owner Daniel Snyder and his wife to pay their nanny over $40,000 in unpaid overtime. There is simply no reason why individuals who can afford to hire domestic workers should not be held to a high standard in providing them with the basic wages and employment standards the vast majority of American workers enjoy.

* The names have been changed.

About the Author: Melvina Ford is the Executive Director of the EJC (DC Employment Justice Center). Prior to joining the EJC as Director of Legal Services in 2005, Melvina was a senior associate at the law firm of Tydings & Rosenberg LLP, in Baltimore, Maryland, where she practiced in the firm’s Litigation Department with an emphasis on labor and employment law. Melvina, however, is not a newcomer to nonprofit advocacy. Before re-entering private practice, Melvina served as the Legal Projects Manager for the Women’s Law Center of Maryland, where she coordinated the Center’s litigation efforts, represented the organization before the Maryland General Assembly and wrote and updated Center publications, such as Sex Discrimination in Employment, a guide to federal and Maryland employment laws for women. Melvina graduated from the Georgetown University Law Center, and she is a member of the Maryland, Virginia, and District of Columbia bars.

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Take Back Labor Day: Week 2 Roundup

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For this week’s installment of our Take Back Labor Day project, we had ten new posts representing the incredible quality and diversity that exists among those who think and write about workplace issues. With a wide variety of topics, including domestic workers, CEO pay, and workplace flexibility, and the representation of powerhouse organizations such as the Center for American Progress, the new Health Care for America Now coalition, and Women Employed, Week 2 was another stellar week.

Kicking off the week, on Monday, September 8, were Dr. David Madland and Karla Walter of the Center for American Progress (CAP) and Mark Harbeke of Winning Workplaces.

Madland and Walter, of the Center for American Progress‘s American Worker Project, point out the abysmal record of the current administration when it comes to having the Department of Labor simply do its job of protecting workers.  What’s the solution (besides voting, of course)?  Passing the Employee Free Choice Act, which the next administration should have the opportunity to do.

Winning Workplaces helps small and midsize organizations create great workplaces, and often it’s Mark Harbeke bringing some of the very best workplace practices and hottest workplace trends to our attention.  This post was no exception, as Mark found three different studies that all make it crystal clear that employers have to engage their employees, if they want them to be productive and satisfied with their work.  If you’re too busy to read the handwriting on the wall, just read Mark on a regular basis at the Winning Workplace blog.

Continuing on Tuesday, September 8, were workplace columnist Bob Rosner and Anne Ladky of Women Employed, respectively tackling the hot topics of CEO pay and paid sick leave.

In a bit of workplace Freakonomics, who figured out that CEO performance has an inverse relationship with their house size? No, it wasn’t Bob Rosner, but he tells us about the study that figured out that the larger the CEO’s house, the more likely that shareholders will pay for the CEO’s poor performance. Pay close attention to Bob — you’ll be seeing a lot more of him soon around these parts!

Anne Ladky of Women Employed provides us a great way to track our progress between this Labor Day and next:  have we passed a federal paid sick leave bill?  If not, we’re not done ensuring fairness in the workplace, while a benefit considered standard by most professionals—paid sick time—is unavailable to millions of lower-paid workers, including 22 million women.

Wednesday, September 10 featured two titans among lawyers who represent workers:  Paul Tobias and Ellen Simon.

Paul Tobias, who can count founding Workplace Fairness and the National Employment Lawyers Association among his myriad of career accomplishments, uses Labor Day to identify a number of necessary changes we need to our employment laws for workers to get a fair shake.  As he remarks, we all hope that the presidential candidates will take note of these needed changes and actually fix them during the next administration.

Ellen Simon, one of the foremost employment and civil rights lawyers in the United States, tells us about a recent surprisingly positive Supreme Court decision (Sprint v. Mendelsohn), which gives us a slight bit of hope that the Court — not especially known for its friendliness to workers — will actually enforce the long-standing rules of evidence, even when to do so might benefit workers.

Thursday, September 11, was a somber day of remembrance for many of us.  Blogger Jason Gooljar looked back to the very origins of the Labor Day holiday, while Chai Feldblum and Katie Corrigan looked to the not-too-distant future of the flexible workplace.

Jason Gooljar, blogger Working Families Party Man, points out what even the most worker-friendly among us might not know about Labor Day: that it was proposed as a September holiday to prevent the celebration of what was considered a much more radical observance:  May Day.  While we may now observe a watered-down holiday, we don’t have to have a watered-down global labor movement, and Jason tells us why that’s important.

Chai Feldblum and Katie Corrigan, who co-direct the Workplace Flexibility 2010 campaign at Georgetown Law, talk about how many workers have extreme difficulty juggling the competing demands of work, family, and community involvement.  Workplace flexibility (including telecommuting, phased retirement, and flexible work arrangements) is a solution which can ultimately bring about more effective business, a stronger workforce, and healthier families — if enough businesses choose to embrace flexibility principles and practices.

Week 2 wrapped up on Friday, September 12, but we didn’t slack off at the end of the week, with Melvina Ford and Jason Rosenbaum tackling two urgent workplace problems:  the lack of sufficient legal protections for domestic workers, and the lack of adequate health care for many, if not most, American workers.

Melvina Ford, Executive Director of the DC Employment Justice Center, identifies a problem hardly confined to the DC metro area:  the exploitation of domestic workers who cook, clean, and take care of children and seniors at home.  She correctly notes that many current laws weren’t written with domestic workers in mind, and either exempt them entirely or do not adequately protect them.  Some recently enacted laws show promise in educating oft-exploited workers about their rights, but we need to do even more to ensure that domestic workers are fairly compensated for their often back-breaking work.

Jason Rosenbaum, writing for the recently formed Health Care for America Now! coalition, makes a relatively obvious but incredibly overlooked connection:  a healthy worker is a better, more productive worker, and sick workers who lack adequate insurance sap productivity.  Yet both businesses and employees face skyrocketing health care costs as a result of insurance company intervention.  Yes, health care is an economic issue — and a vitally important one that we are forced to address in the days ahead.

Whew:  health care, CEO pay, domestic pay, the Supreme Court, the Department of Labor:  you name it, we covered it in week 2, if it’s important in today’s workplace.  And next week continues the fine tradition we’ve established this month:  with at least five guest bloggers continuing the quality posts you’ve seen all month.  Stay tuned!

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