Outten & Golden: Empowering Employees in the Workplace

Domestic Workers Lack Adequate Legal Protections

September 12th, 2008 | Melvina Ford

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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