On September 17, 2013, the U.S. Department of Labor (DOL) announced the Home Care Final Rule, which extends the Fair Labor Standards Act’s (FLSA) minimum wage and overtime protections to domestic workers who provide home care assistance to the elderly, the infirm, and the disabled. The Home Care Final Rule is essential to improving the lives of two million domestic workers who, unlike other U.S. workers, are in many states not protected by the FLSA regarding minimum wage, overtime, sick leave, and vacation. Domestic work differs from other jobs in that the work takes place inside other people’s homes, which often puts domestic workers’ wellbeing at the mercy of their employers.
The exclusion of domestic workers from the FLSA was a concession to Southern politicians in the early 1900’s. It had left many homecare aides vulnerable to abuse and mistreatment by their employers. The rule was scheduled to go into effect on January 1, 2015. However, lawsuits filed by homecare corporations have hindered the change and served as an excuse for states to postpone implementation. For example, in Home Care Association of America v. Weil, U.S. District Court Judge Richard Leon vacated the portion of the Rule that prevents third-party home care providers from using the companionship services exemption, and later vacated the revised definition of companionship services.
As of July 2015, only five states have passed the Domestic Workers Bill of Rights: New York; Hawaii; California; Massachusetts; and Oregon. New York was the first state to pass the law (in July 2010) after six years of efforts by domestic workers, unions, employers, clergy and community organizations. The bill was introduced in two other states, Connecticut and Illinois, but has yet to be passed.
Founded in 2007, the National Domestic Workers Alliance (NDWA) has worked with 44 affiliate organizations of more than 10,000 nannies, housekeepers, and home aides in 26 cities and 18 states to fight for dignity and fairness for domestic workers in the US. According to the NDWA, the average salary of U.S. homecare workers, who are mostly immigrant and minority women, is less than $20,000 a year. In a national survey of 2,086 nannies, caregivers, and housecleaners in 14 metropolitan areas, the NDWA shows that 23 percent of these workers report earning less than the state minimum wage (Burnham and Theodore 2012). 65 percent are uninsured; 4 percent work for employers who provide health insurance. 85 percent of undocumented immigrants did not complain about issues with their working conditions in the previous 12 months due to their immigration status.
A sample of the NDWA Survey that includes 631 domestic workers in four metropolitan areas in California shows that 25 percent of domestic workers earn below the California minimum wage (Theodore et al. 2013). 61 percent of workers make less than what is needed to sufficiently support a family. Only 6 percent of respondents work for employers who pay into Social Security, and 1 percent work for employers who provide health insurance.
In order to address these conditions, NDWA since 2009 has collaborated with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) to set labor standards and support the labor movement of domestic workers in the US.
The two organizations started at the local level to foster relationships with local unions and seek support for their policy initiatives. The collaboration also involved the push for an ILO Convention for Decent Work for Domestic Workers. On September 5, 2013, the International Labor Organization announced the Domestic Workers Convention, 2011 (No. 189), marking a historic victory for both NDWA and AFL-CIO. The US, however, has yet to ratify the convention.
The road to legal protection and fairness remains bumpy for domestic workers in the U.S. Organizations such as NDWA and AFL-CIO have brought about major legal changes in the political area, with five states passing the Domestic Workers Bill of Rights and the landmark victory of the ILO Convention on Domestic Workers. However, the limited power of domestic workers, particularly undocumented immigrants, to form unions and seek legal assistance, needs to be addressed to pave the way for national protection of domestic workers’ rights.