Calendar of Events
New York Recognizes the Household as a Workplace
November 19, 2010
Author: Daniel Villena
New York State’s Domestic Workers Bill of Rights takes effect on November 29, 2010. 1 The new law extends basic employment and labor protections to nannies, housekeepers, and other workers in the domestic service industry. 2 New York is the first state in the nation to extend these protections to this historically excluded group of workers. 3
Employed in one of the most unregulated industries, 4 domestic workers are routinely exploited in the workplace. 5 The domestic workforce has long been excluded from federal and state protections other workers enjoy. This class of workers, for example, is excluded from the Fair Labor Standards Act, the National Labor Relations Act, and the Occupational Safety and Health Act. 6 The ties between domestic work and the legacy of slavery cannot be overlooked. 7 Following abolition, African-American women were primarily the ones who worked as nannies and housekeepers. 8 Historians have argued that their exclusion from the major worker protection laws were political concessions to those who were not willing to support these laws if they applied to former slaves. 9 Employees in this industry are now overwhelmingly immigrant women of color, an easily marginalized group. 10 By working in this degraded labor environment, domestic workers face a number of problems, including low pay, nonpayment of wages, physical and sexual harassment, and substandard living conditions. 11
It is estimated that the new law will provide protections for over 200,000 domestic workers currently employed in New York State. 12 The following section will briefly look at the new protections.
Who is a Covered Domestic Worker?
The new law applies to any “person employed in a home or residence for the purpose of caring for a child, serving as a companion for a sick, convalescing or elderly person, housekeeping, or for any other domestic service purpose.” 13 It is important to note that a person’s immigration status is irrelevant for purposes of this law.
It explicitly excludes three categories of workers, those who:
- “work on a casual basis,” or
- “[are] engaged in providing companionship services […] [and are] employed by [someone] other than the family or household using his or her services;” or
- “are a relative through blood, marriage or adoption of [the employer] […] or […] the person for whom the worker is providing services under a program funded or administered by federal, state or local government.” 14
Domestic workers will be entitled to overtime pay at time-and-a-half of their regular wage for hours worked beyond the 40-hour workweek. 15 Those who live in their employer’s home will qualify for overtime for hours worked beyond the 44-hour workweek. 16
Domestic workers will be entitled to at least one day off from work every week or to time-and-a-half overtime if the worker voluntarily agrees to work on the day off. 17 They will also be entitled to three paid days off after one year of employment. 18
Discrimination and Harassment
Domestic workers will be included in the State’s protections against discrimination and sexual harassment. 19
Domestic workers will be eligible for disability benefits under the state workers’ compensation law. 20
The new law also includes a mandate that the New York State Commissioner of Labor conduct a feasibility study on the practicality of extending collective bargaining rights to domestic workers. 21
The Domestic Service Industry is no longer a workplace without standards. But how will these standards influence employers? Will they be more inclined to have written employment agreements specifying pay day, regular pay rate and overtime pay? Will they take seriously complaints of harassment? Will they now maintain records of hours worked?
Good policies are only as good as how they are applied. Workers who are particularly vulnerable (those who lack immigration status, have limited English proficiency or the social and economic resources to advocate for themselves) might have difficulty benefiting from these changes. 22 Even workers who have had protections on the books are routinely subject to daily workplace violations. 23 Nevertheless, this should not take away from the important change that has taken place. The new law, by setting a floor for working conditions, has provided us with more tools to advocate for this vulnerable class of workers.
New York is now the first state in the nation to recognize “domestic work” as “real work.” 24 Congratulations to Domestic Workers United (and the many other contributors) on this major accomplishment. 25
1 Assembly: A 1479B, 233rd Sess. (N.Y. 2010). The law was signed on August 31, 2010.
2 Domestic workers employed by domestic service placement agencies did have existing labor protections in New York. See N.Y. LAB. LAW § 691. However, the new law applies to those not employed by agencies.
3 Farm workers are the other major class of excluded workers. See e.g. N.Y. LAB. LAW § 651(5)(b).
4 See Domestic Workers United and Data Center, Home is Where the Work is: Inside New York’s Domestic Work Industry (Jul. 14, 2006), available at http://www.datacenter.org/reports/homeiswheretheworkis.pdf (last visited Oct. 15, 2010).
6 See Fair Labor Standards Act, 29 U.S.C. sec. 213(a)(15), (b)(21); National Labor Relations Act, 29 U.S.C. sec. 152(3) (2007); Occupational Safety and Health Act, 29 U.S.C. sec. 652(3) (2004).
7 At least one Senator who signed for the bill acknowledged the ties. See Russ Buettner, For Nannies, Hope for Workplace Protection, N.Y. Times, Jun. 2, 2010, also available at http://www.nytimes.com/2010/06/03/nyregion/03nanny.html (reporting Senator Salvino as saying: “domestic workers and farm workers were excluded from New Deal-era labor protections to appease Southern Democrats at a time when most of the workers were blacks”); see also Meaghan Winter, A Nannies’ Bill of Rights, Slate (Apr. 30, 2010) available at http://www.slate.com/id/2252368/; see also Domestic Workers United and DataCenter, supra note 4.
8 See Domestic Workers United and DataCenter, supra note 4.
9 See generally Juan F. Perea, “The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act,” (2010), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1646496. (Providing an overview of the historical literature regarding the exclusion of domestic workers from legislation during the New Deal).
10 The preamble of the bill explicitly recognizes their vulnerability, stating “[domestic workers are primarily] women of color who, because of race and sex discrimination, are particularly vulnerable to unfair labor practices. Supra note 1.
11 Domestic Workers United and DataCenter, supra note 4; see also Michael Kamber, On the Corner: New York’s Undocumented Day Laborers Fight for Their Piece of the Big Apple, Village Voice, Jul. 24, 2001.
12 See Statistics on Domestic Workers in New York State, Domestic Workers United, available at http://www.domesticworkersunited.org/media.php?show=69 (last visited Oct. 15, 2010).
13 See supra note 1, § 2.
15 See supra note 1, § 6.
17 See supra note 1, § 7.
19 See supra note 1, § 3.
20 See supra note 1, § 9.
21 See supra note 1, § 10.
22 See Buettner, supra note 7.
23 See generally Annette Bernhardt, Siobhan McGrath & James DeFilippis, Unregulated Work in the Global City, Brennan Center for Justice, (Jun. 2007), available at http://www.brennancenter.org/content/resource/unregulated_work_in_the_global_city_full_report.
24 By this I mean that by affording domestic work the protections given to other types work, it is being placed on an equal footing with work outside the home.
25 National Domestic Workers Alliance is pushing for similar legislation in other states. For more information see their website at http://www.nationaldomesticworkeralliance.org.
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