Some very welcome news may break soon for the domestic workforce: the White House appears to be close to announcing a rule change to the Federal Labor Standards Act, finally including home health aides-those who bathe, nurse, toilet, and care for the elderly and disabled in their homes-in its protections. It may sound out of another century, and it is, but home health care workers had been excluded from federal overtime and minimum wage protections through a companionship exemption. It was designed to leave out only those who provided company, but had become so widely interpreted as to encompass a vital, booming workforce. The administration has long been sitting on the decision to change the rule, but outgoing Secretary of Labor Hilda Solis recently told The Nation, "there'll be movement on that. We'll shortly see progress made there."
If and when this change is announced, this workforce will be formally recognized as "workers," not babysitters making pin money. The symbolism can't be downplayed. There will be practical effects too. Some home-care workers are covered by state law: as of 2011, the National Employment Law Project found that 15 states gave these occupations minimum wage and overtime protection, and seven more guaranteed only minimum wages. But that's less than half-28 states remain, leaving these workers completely uncovered.
With these new protections, though, the remaining workers will have a right to $7.25 an hour and time-and-a-half over 40 hours. It also makes a larger array of resources-both federal and state-available to workers whose rights are infringed even in states that offered protections.
Even so, there's not always a straight line between improved rights and improved conditions on the job, and that's particularly true for those who labor in the home. Although they are covered by minimum-wage laws, a recent report found that nearly a quarter of nannies and housekeepers are paid less-even with robust rules on the books. New York State passed a Domestic Workers Bill of Rights in 2010 that mandated the right to overtime, a day of rest every seven days, three paid days off a year, and protection against harassment. Yet a year later, the Park Slope Parents association released its annual survey showing that only about 15 percent of parents reported paying overtime wages; 44 percent pay the same rate if their nanny works more than 40 hours a week. Meanwhile, six in ten pay their nannies completely off the books-the conditions are not only subpar, but often impossible to track. How do we connect improving rights for these workers to improving their jobs?
First, some technicalities. "Domestic workers" encompasses two different workforces: what we think of as traditional domestic workers, like nannies and housecleaners, and home health aides who care for the elderly and disabled. There are clear similarities: They all work in the home, often making them invisible and leaving them vulnerable. The lines can sometimes even blur so that a single worker is doing tasks from both categories. And this work is still considered "women's work," the sort of care many women are expected to do for free.
But the differences are important. For domestic workers, the employers are usually individuals or families and therefore the money is private. (There is some public money, but it goes to parents through subsidies.) For home health-care workers, on the other hand, the money almost always comes from public programs, mostly Medicaid. The differences are also technical: domestic workers, such as nannies and housekeepers, have been covered by the FLSA, while home health workers have been excluded.
Fixing the exemption isn't the end-all for what the government can do to help domestic workers -as Sarah Leberstein of NELP told me, each state's department of labor "can go a really long way toward informing both employers and workers of their rights and taking an active role in bringing investigations and setting the tone for enforcement."
On-the-ground organizing can also play a role. Ai-Jen Poo, director of the National Domestic Workers Alliance, told me "education and culture shift strategies and mechanisms that send a message are fundamental to how we change things." It's an ongoing process: "As we do outreach in all of our work," she said, "we're constantly talking about what's in the bill." When a worker comes in for a training course, she also gets a run down on what her legal rights are.
It also entails sending out domestic workers into the field to get the word out. Barbara Young, who is now a national organizer with the NDWA, worked as a nanny for almost 18 years. She became a "foot soldier" with Domestic Workers United, taking materials with her to work and spending breaks sharing information with fellow domestic workers. This is the heartbeat of the group's efforts to spread the word about rights.
"We ask workers when they meet other workers to share this information," Young explained, including information about the organization's hotline and legal clinic. The group still faces daunting challenges: the fear of retaliation from employers for getting involved, for starters, particularly in a nasty economy. But there's also only so much that the foot soldiers can do. In the city, it's easy to find the places where domestic workers congregate. In the suburbs, it's nearly impossible.
The good news is that they're not alone. Some groups are organizing the other side of the equation: parents. Jews for Racial & Economic Justice has been engaged in a tricky question, as community organizer Rachel McCullough explained, "How on earth do you implement a bill like this in the privacy of employers' homes?"
One of the remaining sticking points is getting employers used to paying overtime. Most parents had paid a flat weekly rate-now no longer legal if a domestic worker goes over 40 hours. "There's always a little bit of resistance and frustration when we need to adjust to something we've gotten used to," she noted.
It's even more difficult to find and track all of the employers. "It's difficult to impossible to measure the extent to which employers have implemented a lot of the things that we want them to implement," she told me. At a very basic level, the group has been able to let a couple thousand employers know about their legal obligations through listservs and partner organizations. But that's just the tip of the iceberg.
Organizing home-care workers can look very different. It differs state by state, but many of these workers are now unionized. It started with a campaign in California to find an entity that the home-care workers could bargain with. That state created a public authority, a new governmental agency that accepted bargaining responsibilities for the disaggregated home care workforce. That move "led to an organizing breakthrough," said David Rolf, VP and chair of the SEIU's Home Care Council. Other states followed suit, finding ways to make the state a bargaining entity for these workers. Now hundreds of thousands have the right to form a union. In some states, like New York, the workforce is almost completely unionized and bargains with the large agencies that employ the majority of the workers. Others may never see widespread unionization, however. Rolf estimated that Texas, for example, has 2,500 organizations that employ home-care workers, so organizing them business-by-business would mean "200 years of work." Then there are those who are paid with cash or check, all but outside the reach of unions.
For much of the organized workforce, the companionship exemption rule change will have a quick impact. State governments and the large public companies that employ the workers will have strong incentives to comply. For the rest, though, they'll likely need organizing and education campaigns just like those being run by nannies. Homes are still incredibly private and without a large government or corporation involved, this work is difficult to track. "I doubt many government inspectors will be wandering through people's homes and asking to see time cards," Rolf remarked.
A larger question remains for both workforces: how to make these not just minimum wage jobs, but good jobs. The median pay for home health aides is $9.70 an hour, usually amounting to poverty wages. The median hourly wage for domestic workers is about the same at $10. "Ultimately that is a question about whether the U.S. is willing to fund care as a public good," noted Annette Bernhardt, fellow at the Roosevelt Institute and policy co-director at NELP. For home care workers, that will mean increasing Medicaid funds-something that's the opposite of many politicians' instincts right now.
