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"Domestic Workers in the Underground Economy: The Lack of Civil Rights Protections,"

by Yolanda S. Wu March/April 1998 issue of Poverty & Race

Domestic workers performing household tasks and caring for children are extremely vulnerable to abuse by their employers. As described in Martha Honey's article. "Slavery:
1997 Style," in the Nov. Dec. P&R, some domestics, many of whom are undocumented immigrants. are virtually under house arrest and are forced to work around the clock, seven days a week. In clear violation of the law, many are not paid even the minimum wage for their labor. But many women do not come forward, because they fear deportation. Language and cultural barriers only exacerbate the situation. The U.S. economy's reli-ance on cheap, foreign-born labor in the domestic sphere, and the lack of work visa and green cards for immi-grant childcare providers. further com-plicate the issue. As the Clinton Ad-ministration moves forward with its childcare initiative, the issue of who cares for our children, and how those caregivers are treated, will continue to be in the spotlight. While not all do-mestics provide childcare. a significant number do. The challenge for advo-cates is to insure that, as the most vul-nerable group of childcare workers. domestics are treated fairly by their employers and have available to them the full range of legal remedies to fight any abuses.

Gaps in Legal Protection

In 1974, Congress amended the Fair Labor Standards Act (FLSA), which provides minimum wage and overtime pay, to cover domestic workers. In doing so, Congress noted that "[private household work has become one of the least attractive fields of employment." It extended FLSA's minimum wage and overtime protection - to domestic workers "not only [to] raise the wages of these workers but [to] improve the sorry image of household employment... [and] to raise the status and dignity of this work." Indeed, a group of Congresswomen who supported the 1974 amendment wrote: "These women are struggling to make ends meet and keep their
families together. They are proud hard workers who are doing their darndest to stay off the welfare rolls and are
getting precious little help for their efforts. Let's provide some help for those who are trying to help themselves."

While domestics are entitled to the minimum wage and overtime pay as a result of the 1974 FLSA amendment.
there remain considerable gaps in legal protection. Those gaps can have a significant impact on domestics' ability to retain a job and support their families.

Labor statutes generally include domestic workers. Yet many state laws exclude domestic workers from the definition. For example. many states have minimum wages that are higher than the federal minimum wage. reflecting the high cost of living in the state. Yet a number of such states, including Alaska and Hawaii, exempt domestic workers from their minimum wage laws.

Many other states, including Colorado, Minnesota, New Jersey and Oregon (and the District of Columbia). specifically exempt domestic workers from coverage under state civil rights laws prohibiting sexual harassment and wage discrimination that apply to all other workers. The main federal employment discrimination law, Title VII of the 1964 Civil Rights Act, applies only to employers of 15 or more employees. and so effectively excludes all but a very few private households.

Many state civil rights laws apply only to employers of four or more employees. State civil rights laws that exclude domestics deny workers who, for example, are sexually harassed by their employers, an important avenue of legal recourse.

The Need for Law Reform

Because of the potential for and reality of abuses domestic workers face, and because all workers should have the dignity afforded by basic legal protections, law reform is needed to over-turn exclusions of domestic workers from state labor and civil rights laws. Advocates can work to overturn the exclusion of domestics in state laws by modeling an amendment of state law on the FLSA amendment. The same rationales that Congress relied on in 1974 to extend basic labor protections to domestics apply with equal if not greater force today at the state level. In extending FESA to cover domestic service. Congress cited low wages, demographics, poor working conditions and the lack of benefits available in the domestic service sector. Approximately three-quarters of the domestics estimated to be brought under the FLSA's protections earned less than the minimum wage. Congress also noted that domestic service was one of the least attractive fields of employment, and that workers in this sector were predominantly women, with an average age of 50 (ten years older than the average female employee).

Because domestic work is part of the informal work sector, it is hard to track the numbers and demographics of the women who perform this work. One study of Mexican workers in Los Angeles in the early 1980s found that, in contrast to legal Mexican immigrants and native-born workers of Mexican parentage. only undocumented immigrant women resorted to doing domestic work in any numbers. Another study of immigrant workers in El Paso found that, on average, domestics were paid less than other undocumented workers. Census data confirm that immigrant women and women of color are disproportionately represented in the occupation. The Census Bureau's Current Population Survey counted 804,000 employees working in private households in 1996, of which 95% were female, 17% were Black, and 26% were Hispanic. It also counted 276,000 employees working as cleaners and servants, of which 97% were female, 13% were Black, and 15% were Hispanic. Given that so many domestics are employed off the books, however, these figures most likely undercount the actual number of domestics in this country, and undocumented women of color are the most undercounted of all.

The numbers and demographics also vary by region. Cities with large immigrant populations like New York, Los Angeles and El Paso, to name a few, tend to have more immigrant women working as domestics. One study found that 29% of Jamaican women in New York worked as domestics. Researchers estimate 18-26,000 Mexican immigrant women working as domestics in El Paso.

The exclusion of domestics from state labor and civil rights laws contributes significantly to the exploitation of domestic employees. States should amend or enact legislation modeled on the 1974 FLSA amendment to include domestics under all employment laws, as well as civil and human rights statutes. NOW LDEFs booklet, "Out of the Shadows: Strategies for Expanding State Labor and Civil Rights Protections for Domestic Workers," contains suggested guidelines for implementing a legislative strategy, starting an organizing effort, building a coalition and working with the media. The booklet also contains a comprehensive chart of state laws that exclude domestic workers from coverage. Copies are available for $5 from NOW LDEF, 99 Hudson St., 12th Floor, NYC, NY 10013. 212/925-6635.

Yolanda S. Wu Yolanda S. Wu is a staff attorney at NOW Legal Defense and Education Fund, where she works in the areas of economic justice, sexual harassment and reproductive rights. A more complete list of some 30 organizations working on immigrant women is issues is available from the author.
 
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