Protecting the Unprotected Domestic Worker


Domestic Workers are legally marginalized under current labor and employment law. They are currently unprotected under the National Labor Relations Act (NLRA), the Fair Labor Standards Act (FLSA), and the Occupational Safety and Health Act (OSHA). Further, they are de facto excluded from protection under a number of laws, like Title VII of the Civil Rights Act, which exempt employers who employ fewer than a specified number of employees. Section 2(3) of the NLRA explicitly excludes domestic workers from its protection because the term “employee” is defined to “not include any individual employed … in the domestic service of any family or person at his home” including nannies, housecleaners, caregivers, companions, etc.

Protection under the current NLRA is infeasible. Even if the definition of “employees” were expanded to include domestic workers the enterprises covered by the NLRA are limited to employers “affecting commerce.” This requirement is further limited, via self-restriction by the Board, to employers exceeding certain dollar minima. Also, the definition of protected activity requires “concerted activity.” The issue here is whether under the Act a domestic worker can engage in “protected activity” when concerted activity requires more than one worker and most employers hire one domestic worker per household.  Thus, because of the concerns that may arise under the NLRA, it might seem more practical to leave it to the States. State governments may circumvent these concerns by enacting legislation to ensure basic labor rights for those who fall under the line of “domestic service.”

New York has spearheaded the effort to extend labor law protection to domestic workers by passing a Domestic Workers Bill of Rights (A1470B). Gov. David Paterson signed the Domestic Workers Bill of Rights on August 31, 2010 and it will go into effect November 29, 2010. The recently-enacted bill includes provisions entitling domestic workers to no less than the minimum wage, overtime pay, vacation, short-term disability benefits and protection against sexual harassment. It also authorizes the State Commissioner of Labor to report to the governor, speaker of the assembly and temporary president of the senate on the “feasibility and practicability” before November 1, 2010 of allowing domestic workers to organize for the purpose of collective bargaining in accordance with the State Labor Relations Act. The report is to address the potential for the formation of bargaining units comprised of domestic workers, whether there are any unique issues which arise in the formation of the bargaining unit and, if so, whether there are other possible frameworks for collective organization or for ensuring the benefits that accompany organization for domestic workers. This could be an insightful piece to consider should the possibility of amendment to the NLRA arise in the future. For now, it will be necessary for employers of domestic workers in New York to maintain clear payroll records of hours worked, including pay rate and overtime pay, develop an anti-discrimination/harassment policy and obtain insurance coverage for disability benefits of domestic workers (even if employed for less than 40 hours a week).

Nevertheless, although New York has acted and California is being petitioned to follow its steps, millions of Domestic workers within the remaining states, who are usually women or immigrants, still find themselves vulnerable to violations of basic labor and employment laws. For as A1470B states in its section on legislative findings and intent, “Domestic workers often labor under harsh conditions, work long hours for low wages with out benefits or job security, are isolated in their workplaces, and are endangered by sexual harassment and assault, as well as verbal, emotional and psychological abuse.”  There are over 200,000 women who work as nannies, housecleaners, caregivers and companions in New York State.  But there are millions within the remaining United States who remain unprotected.  The call for legislative action beyond the state of New York remains.