B. International Protections

Several important international treaties address workplace protections for domestic workers, and, in theory, place a floor on permissible employer conduct. Part I.B.1 discusses the International Covenant on Civil and Political Rights (“ICCPR,” or the “Covenant”) and how it relates to the state of domestic worker protections in the United States. Part I.B.2 then discusses the Convention Concerning Decent Work for Domestic Workers (“Domestic Worker Convention,” or the “Convention”) and addresses what the new Convention would mean for domestic workers.

1. International Covenant on Civil and Political Rights

ICCPR Article 2 obligates States to undertake steps “necessary to give effect to the rights” to assemble and associate. Under this understanding, labor practices within the United States not only run counter to Article 2, but also Articles 21 and 22 because carve-outs within the NLRA deliberately exempt domestic workers from unionizing protections. Among other things, Article 2 obligates State parties to legislate where necessary, to give full effect to the rights recognized within the Covenant. It also obligates State parties to protect those rights “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The Covenant goes on to enumerate specific rights, such as of peaceful assembly (Article 21) and freedom of association (Article 22). The Human Rights Committee, the UN body that monitors the ICCPR's implementation, has interpreted similar language in other treaties as obligating the State to take both affirmative and negative actions toward protecting those enumerated rights. Similarly, the European Court of Human Rights interpreted the scope of the right to peaceful assembly and the right to freely associate broadly, as including trade unions within their contexts.

But though particular ICCPR violations may well occur within the United States, a consequent problem remains with enforcement. The United States has placed a declaration on the Covenant restricting its enforceability within the domestic sphere. Because the treaty is not self-executing, an employer found in violation of any of its provisions would not be subject to jurisdiction in any US court. For the same reason, the ICCPR does not create an automatic private cause of action on behalf of domestic workers who are denied associational rights, or any other rights enumerated within the ICCPR. Consequently, the ICCPR is a strong instrument with enforceable provisions in the international arena, but the existence of non-self-executing provisions plagues its enforcement within US courts.

2. Convention Concerning Decent Work for Domestic Workers

Discussed above, domestic workers around the world share many of the same traits as do domestic workers in the United States. In June 2011, the ILO adopted the Convention Concerning Decent Work for Domestic Workers, a historic set of international standards intended to place a floor on minimum working conditions for millions of domestic workers worldwide. Though official estimates place the number of global domestic workers at 53 million, the prevalence of undocumented workers engaged in informal labor economies raises that estimate closer to nearly twice that, 100 million. In some developing countries, the concentration of domestic workers within the workforce can be significant, where nearly twelve percent of all workers work within a household in one form or another. Estimates suggest that over half of domestic workers worldwide do not work with maximum weekly hour limits; forty-five percent are not given any time off during the week; and over a third of female workers have no legal entitlements to maternity leave.

The Convention aims to correct these disparities. For instance, countries that ratify the Convention are obligated to enforce employment contracts to specify certain wage and hour restrictions on a domestic worker's labor. If, in a particular country, a minimum wage exists for other low-wage workers generally, the Convention requires that wage floor to apply for households hiring domestic workers also. Additionally, the Convention limits the maximum hours of work per day, enacts new protections against child labor practices, and obligates Convention parties to create appropriate enforcement mechanisms. Country delegates at the June 2011 ILO conference voted in favor of the Convention, passing it with 396 votes in favor, and 16 votes against, sending a strong global voice in support of these measures.

Both of these international treaties--the ICCPR and the Domestic Worker Convention--offer opportunities to increase labor protections to domestic workers. At a minimum, they evidence a strong international push to recognize the need to address problems in a growing segment of low-wage work. Of course, national governments still hold considerable discretion in deciding how to approach those problems in accordance with the methods they see fit. But, these treaties lend valuable guidance to governments in informing them of the prevailing labor standards within international community.