Domestic Workers and Labor Law

Domestic worker cleaning windows

On March 21, 2012, the National Partnership for Women & Families, along with 27 other national organizations, wrote a letter to the US Department of Labor to correct an injustice 75 years in the making. 

These 28 organizations were fighting to fix a law that for years had overlooked or excluded domestic workers, including caregivers and home health aides (HHAs). New laws that protected millions of workers did not extend the same protections to people working in private homes or caring for individuals. 

This legal history shows why care agencies like Penn Asian Senior Services (PASSi) must commit to protecting HHAs and other caregivers. The below laws have overlooked domestic workers for decades.

National Labor Relations Act (1935)

Under the National Labor Relations Act (NLRA), employees have the right to organize and bargain as a single unit. This made negotiations between employers and employees more fair. Companies have huge power compared to a single employee, but not compared to every employee working together.

However, the NLRA definition of “employees” did not include anyone who works “in the domestic service of any family or person at home.” This exclusion means that domestic workers cannot bargain together for increased wages or benefits, and they cannot legally strike or picket as a union.  The stated reason for excluding domestic workers was that they are usually employed by individual families, and it would be too hard to organize employees working in so many different homes. Recent efforts by domestic workers to organize have undermined these excuses.

Fair Labor Standards Act (1938)

The Fair Labor Standards Act (FLSA), passed as part of President Roosevelt’s New Deal, sparked that letter from the National Partnership for Women & Families almost 75 years later.

The FLSA set the Federal Minimum Wage and mandated overtime pay for any time worked over 40 hours a week. Hopefully, that would prevent companies from monopolizing the time of their workers.

But the FLSA barred farmworkers and domestic workers from these rights. It was a way to exclude Black workers without explicitly mentioning race, since Black workers in the South were disproportionately concentrated in those two industries. Southern Democrats in Congress would then support the bill, but the language would not alienate Northern supporters.

The FLSA was amended in the 1970s to cover most domestic workers, but again it excluded anyone providing mostly “companionship services for individuals who (because of age or infirmity) are unable to care for themselves.” Lawmakers at the time made it clear they were thinking about babysitters, or relatives watching older family members. In other words, causal help from friends or family.

Nevertheless, the Department of Labor expanded the exemption to cover anyone taking care of an elderly person day-to-day, even caregivers employed by private agencies. In 2007, the Supreme Court ruled that Evelyn Coke, a caregiver for over 30 years, was not entitled to overtime pay despite frequently working more than 70 hours a week. The interpretation by the Department of Labor made it legal.

Things weren’t fixed until President Obama closed the loophole in 2015. President Clinton had tried to do it on the second-to-last day of his presidency in 2001, but the Bush administration reversed his decision citing concerns over costs.

Title VII of the Civil Rights Act (1965)

Similar problems with definitions come up in the Civil Rights Act of 1965, specifically Title VII. This section established that it is illegal for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

Not only did Title VII prevent employers from hiring or firing employees based on race or gender, it also protected employees from sexual harassment, according to a Supreme Court interpretation. An employer violates Title VII if they create a hostile or abusive work environment based on an employee’s sex. 

However, the definition of “employer” in Title VII only includes people or companies with more than 15 employees. Many caregivers, unless they are working directly for an agency, are the only employee for the client they are helping. Even some caregivers who seem to be working for an agency are still technically employed by the client. Title VII does not protect those caregivers from harassment. 

Occupational Safety and Health Act (1970)

Congress passed the Occupational Safety and Health (OSH) Act to ensure safe working conditions for every person working in the country. But in what is a pattern by now, the OSH Act explicitly excludes domestic workers.

According to the act,

As a matter of policy, individuals who, in their own residences, privately employ persons for the purpose of performing for the benefit of such individuals what are commonly regarded as ordinary domestic household tasks, such as house cleaning, cooking, and caring for children, shall not be subject to the requirements of the Act with respect to such employment. 

In other words, people who hire someone to work in their homes are not employers, so they are not responsible for providing a safe working environment.

People often overlook how physically demanding it is to be an HHA. According to a report from PHI, an organization that does research on direct care, HHAs suffered injuries on the job at a rate of 144 per 10,000 workers, compared to a rate of 100 per 10,000 for all workers.

In fact, that rate may underrepresent injuries, since nursing assistants, who perform similar duties, report injuries at 337 per 10,000. Injuries to HHAs probably go unreported specifically because they work in people’s homes. Still these workers are not guaranteed a safe environment.

How PASSi Protects the Rights of Our Home Health Aides

Even today, HHAs experience more wage theft and other violations of labor law than other jobs. That is especially true for immigrants for whom English is a second language. Because they have such limited legal rights, caregivers have to rely on themselves or the agencies they work with to help protect them. 

To help our caregivers, PASSi has many structures in place to protect HHAs who work with us. That includes ways to protect their wages:

  • Direct pay with optional direct deposit
  • Electronic time keeping
  • Annual raises and performance-based bonuses

On-the-job health and safety are a similar issue for domestic workers. While the OSH Act does not cover domestic workers, HHAs suffer 50 percent more injuries than workers in hospitals and 70 percent more than the national average. 

To prevent these injuries, PASSi offers training in safety and well-being for both them and their clients. This has kept injury rates so low that in 2020, PASSi received the Pennsylvania Governor’s Award for Safety Excellence. We also offer health insurance to all our HHAs, if something does go wrong.

It’s Time for Systemic Change

Of course, these are just our own individual efforts. Fixing this problem and getting proper protection for domestic workers like home health aides requires a large-scale solution, including changing these laws.

Historically, lawmakers have used the fact that work like caregiving takes place in the privacy of people’s homes as an excuse not to give them legal protection. However, this makes domestic workers even more vulnerable, since they are out of the public eye.

These exclusions were inappropriate when they were first added. That hasn’t changed. Now is the time to finally get rid of them.

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Penn Asian Senior Services