The Nation:
By Ai-jen Poo and Andrea Cristina Mercado
July 13, 2015
In
the summer of 2010, New York became the first state in the nation to
pass a Domestic Workers’ Bill of Rights. The breakthrough legislation
established strong minimum
standards for domestic workers, culminating nearly seven years of
organizing by a broad coalition anchored by the perseverance, skill, and
creativity of the domestic worker organizations at its center. Since
then California, Massachusetts, Hawaii, and Oregon
have followed with similar legislation, and campaigns are underway in
Connecticut and Illinois. These state initiatives represent historic
progress in the long-running campaign to bring basic recognition and
dignity to this critical workforce. Five years after
that first victory movement leaders at the National Domestic Workers
Alliance (NDWA), an organization we co-founded in 2007, have paused to
reflect on what the legislative strategy has achieved and where we must
go from here.
A LEGACY OF EXCLUSION
Every
generation of domestic worker organizing and activism since the 1930s
has brought attention to the racially motivated exclusion of this
workforce from the protections
of the National Labor Relations Act (NLRA) and the Fair Labor Standards
Act (FLSA), and the impact of those exclusions on their lives. In the
1970s, domestic workers organized successfully to gain protections for
most of the workforce under the FLSA, winning
the right to minimum wage and overtime (with the significant exclusion
of babysitters and workers employed to “provide companionship” to the
disabled and elderly). The NLRA bar to the right to bargain collectively
remains in force to this day.
The
intrinsic power imbalance between employer and employee is heightened
in the context of a private home, compounding the absence of legal
protections. Domestic workers
typically work without a contract. They are routinely given tasks
beyond their job description (when there is one). They work long hours
without meal or rest breaks, are entitled to no paid holidays or
vacation days, are subject to arbitrary termination without
severance pay and theft of wages due, and experience high rates of
injury on the job without access to workers’ compensation or adequate
healthcare. The workforce of nannies, housecleaners, and elder
caregivers is also especially vulnerable on account of race,
ethnicity, gender, and immigration status and limited English-language
proficiency.
The
domestic work industry urgently needs to raise and clarify the baseline
requirements of the employer-employee relationship, both to empower
workers and to hold employers
accountable to the legal and ethical responsibilities of their role.
THE LEGISLATIVE TERRAIN
Movement
leaders determined early on that improving the laws governing the
conditions of employment was a fundamental precondition to transforming
domestic workers’ capacity
to negotiate and demand fairness.
From
the beginning, as domestic workers came together to discuss what they
were experiencing in their workplaces, we were aware of the limitations
inherent in advocating
for legislative change. Given the current dynamics in Congress, the
prospect of moving federal legislation seemed vanishingly remote. Most
state legislative processes are not conducive to democratic
decision-making or worker participation, either. Committee
hearings and votes are often scheduled with less than three days’
notice, and decisions on amendments need to be made in maddeningly short
timeframes.
Home
base to political actors with conflicting political interests and
divergent obligations to constituents, corporate interests, and donors,
the legislative terrain
is, by its nature, one of compromise. We prepared our members for
negotiation and held lengthy discussions on our priorities and bottom
lines. Many elected officials, and some domestic workers, doubted we
would be able to make any lasting changes. But we were
on a mission to bring domestic workers into the public conversation,
and to win dignity and respect.
When
we decided to campaign for passage of a New York State Domestic
Workers’ Bill of Rights, we were new to the game. Speaking multiple
languages and representing a wide
range of experiences, domestic workers convened in a Manhattan union
hall in late 2003 to craft solutions to the many problematic practices
and outright abuses they encountered at work. Legal experts transformed
their solutions into draft legislation, and
the campaign began in earnest.
Next,
domestic workers and those inspired to join us brought our case to
Albany. We met with legislators, who were often employers of domestic
workers themselves and sometimes
the sons and daughters of domestic workers as well. Women bravely told
their stories of abuse to elected officials, reporters, and one another,
and shared their dreams and vision for dignity. In the course of more
than six years of visiting legislators, educating
committee chairs, and breaking through stalemates, we made painful
compromises. We initially sought a living wage of $14 per hour,
healthcare, paid sick days, paid national holidays, severance pay, and
two weeks of paid vacation. But by the time the bill reached
the Senate floor, a host of provisions had been removed. Each time one
was about to be excised, domestic workers engaged in difficult
conversations about whether we were giving up too much, whether the
compromises constituted a betrayal of principle, and whether
a bill stripped of key provisions was or wasn’t better than no bill at
all. We didn’t always all agree, but the campaign always moved forward.
In August 2010, Governor David Paterson signed into law a bill that
included overtime pay for live-in workers, one
day of rest out of every seven, three paid rest days per year, and
protection from sexual and racial harassment. For the first time since
the 1970s, domestic workers had won new legal rights.
Three
years later, Governor Jerry Brown signed the California Domestic Worker
Bill of Rights, the result of a successful multi-year campaign by the
California Domestic
Workers Coalition. Overcoming two governors’ vetoes, the campaign
finally won the right to overtime for nannies and caregivers who are
classified as personal attendants. With enforcement, this measure will
put money into the pockets of workers who are routinely
under-compensated for the long hours they put in. While the victory did
not include other provisions we had been fighting for, everyone
involved was proud of what was achieved in the state with the largest
number of immigrant workers and the largest number
of domestic workers.
Despite
the significant compromises that were made to advance the bills in both
New York and California, we continue to believe the campaigns were
worth the effort. At
the most concrete level, they set a national precedent by winning new
rights and protections for domestic workers, generating new legal
frameworks for improving working conditions.
The
New York campaign pioneered a model of domestic worker organizing that
has been borrowed, tailored to different circumstances, and implemented
in other states. Domestic
workers in Massachusetts built a coalition that just one year ago won
the most expansive set of rights and protections thus far enacted with
the passage of a law that requires written contracts, notice of
termination, and maternity leave. Domestic worker policy
and exclusions vary from state to state: each state has its own
alignment of political actors, and each coalition has its own strengths
and challenges. The measures achieved in one state might not be
replicable in another. But labor rights for domestic workers
are expanding in each state.
Beyond
winning new labor protections, the campaigns remain central to the
NDWA’s strategy because they help sharpen the political skills and the
strategic capacity of
domestic workers, their organizations, and the domestic worker movement
as a whole. The campaigns accelerated the political development of
dynamic leaders and drew new workers into the movement.
Legislative
campaigns that are designed to centralize and elevate the leadership of
workers are learning laboratories, offering up indispensable lessons
that cannot be
learned while removed from the places in which power operates. In
organizing to pass domestic worker legislation, workers and organizers
learn how to do effective outreach; cultivate allies and champions;
quiet the objections of opponents; give voice to their
own stories, weaving their unique experiences into a broad, composite
portrait of workers in the industry; maximize their collective voice in
the legislative process; and expand their power by building strong
alliances with labor unions, faith-based institutions,
civic organizations, and other movements.
Our
legislative victories demonstrate that there is room for workers to
maneuver and make progress in a political environment in which organized
labor has struggled to
make gains. The weakening of unions, the undermining of collective
bargaining, and the dramatic decline in strike activity—core realities
that all worker advocates face—have led to significant experimentation
on the part of unions, worker centers, and other
worker advocates. In this context, bill of rights campaigns demonstrate
that women of color are powerful leaders, and workers thought to be
“unorganizable” may only be lacking the leadership and framework needed
to unleash their potential.
SECURING THE FLOOR
While
new state legislation changes the legal framework for all workers and
employers, it does not impact all workers either equally or
automatically. Some employers are
fair, but few jobs last forever. When domestic workers leave or lose
their jobs, the new laws provide a better baseline from which to bargain
with potential employers.
Furthermore,
although some workers regularly secure better conditions than the
standards set by the bill of rights, many do not. Every NDWA affiliate
encounters many workers
whose employers fail to live up to even minimal fair labor practices,
along with some who endure stunningly egregious forms of abuse. The
policies enacted through bill of rights campaigns, while far from ideal,
create or reinforce a floor for the industry.
They provide a platform from which to negotiate for those working in
subpar conditions and help raise the baseline in the ongoing effort to
expand rights and protections.
CHALLENGES OF ENFORCEMENT
Bill
of rights policies do not automatically improve workers’ lives. Workers
can’t negotiate for standards they don’t know about, and employers
can’t conform to laws they
don’t know exist. Once a bill has passed, the first imperative is to
educate the public about its provisions. The second imperative is
enforcement. Laws are made real by identifying, exposing, and
sanctioning employers who violate them. This is a real challenge.
Every day, new parents hire nannies without knowledge of the
legislation, and every day new caregivers enter the workforce without
the support they need to negotiate on their own behalf. Effective
enforcement requires resources and the capacity to assess a
rapidly shifting landscape.
Enforcement
presents many challenges. At the top of the list are the woefully
insufficient funds provided by public agencies and workers’ fear of
retaliation for complaining
about violations—a fear that is especially strong and well-founded for
undocumented workers. In response to these challenges, domestic worker
organizations in New York, California, and Massachusetts, and supportive
employers working through an organization
called Hand in Hand, are developing a grassroots enforcement agenda
that builds organized worker density and trains leaders to educate
colleagues about their rights and show them how to negotiate for
contracts and better working conditions. Hand in Hand also
educates employers about their obligations and about the “Fair Care
Pledge,” which includes living wages, paid time off, and a clear work
agreement. The most productive ways to advance this work are not firmly
established, but we are experimenting and innovating.
Even
as we work to ensure that these hard-won rights are widely understood
and vigorously enforced, we continue to move our legislative campaigns
forward. In Illinois,
the Domestic Workers’ Bill of Rights Act is moving through the
legislature. In Connecticut, a similar bill has passed the legislature
and is awaiting the governor’s signature.
NDWA
now has local affiliates in 36 cities and 16 states. In states in which
bills have not yet been introduced, we are assessing multiple factors
to determine whether
a legislative campaign is a viable way to build power for the long
term. And we are assessing ways to address the enforcement challenges in
the context of the substance of the legislation itself.
Domestic
and family care jobs represent a large and growing share of the
workforce in this country. Seventy-one percent of women with children
are in the labor force.
Millions of family caregivers are struggling to afford and manage care
for their children and elders. By 2050, an estimated 27 million older
Americans and people with disabilities will require long-term care or
support to meet their basic needs. In other words,
these jobs are the future, meeting a growing need for working families.
There
is no blueprint for domestic worker organizing. We learn through trial
and error. We share hard-won lessons across the alliance between
organizations, between cities,
and with domestic workers organizing in other countries. We adopt
successful models of organizing and adapt them to different conditions.
We do our best to stay grounded in both the optimism born of witnessing
the power of domestic workers in motion and the
realism imposed by the challenge of navigating an undeniably complex
and often hostile political terrain.
Five
years after the first breakthrough policy victory of the domestic
workers movement, we have expanded our strategies, improved upon
existing ones, and learned some
important lessons. We still hold the same core values and principles
that led us to the New York State legislature. This work deserves
respect. Domestic workers must have a powerful voice and play an
important role in shaping their future. Organizing and movement-building
are at the heart of our ability to build power, and we have a
responsibility to win.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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