A. “The lowest rung of legitimate employment”

Historically, domestic work in the United States has been the employ of the poor and the disenfranchised. Owing in large part to the nature of the job, it has never occupied a coveted position within the American social hierarchy. Not only did domestic workers mop floors and clean toilets, but they were also expected to dedicate a significant portion of their time in doing so. Sociologist Lewis Coser pointed out a growing trend during the New Deal era, where the responsibilities for jobs of similar work required a near-total commitment from the worker herself. Dubbed ““greedy institutions,” these occupations were those that did not “rest content with claiming a segment of the time, commitment, and energy of the servant,”but instead demanded “full-time allegiance.” This is as true today as it was nearly a hundred years ago, when the enactment of such important New Deal legislation, like the NLRA, afforded new and unprecedented protections for US workers.

Across the United States, ninety-five percent of the estimated 1.8 million domestic workers are women, are not born in the United States, or are persons of color. When narrowed to specific geographic areas within the country, this proportion becomes even more stratified. For instance, in New York City, ninety-three percent of the estimated 200,000 domestic workers are women, but ninety-five percent are racial minorities, and ninety-nine percent are from countries other than the United States. An extensive study in San Francisco reflects this trend as well, finding that ninety-nine percent of domestic workers were non-American immigrant workers. Ninety-four percent of this portion were Latina, and all but two percent of the domestic worker population was female. The trend repeats itself in other areas of the country like Chicago and Los Angeles. Importantly, however, this distribution reflects the pattern around the world, as scholars and advocates estimate that close to 100 million women and young girls earn their living through some form of domestic work.

What more, the employers who typically hire domestic workers seldom adhere to lawful labor practices. A survey conducted throughout New York City, Chicago, and Los Angeles found that forty-one percent of domestic workers were not paid the minimum wage, as required by state and federal law. Eighty-three percent of home health care workers and ninety percent of child care workers worked past the standard work week without overtime compensation. The yearly earnings for every one of four domestic workers in New York City were not enough to meet the poverty line.

Employer abuses in the industry are common because safeguards like grievance procedures, review committees, and appeals boards do not exist within a household. Reports indicate that one-third of the 15,000 to 20,000 annual victims of labor trafficking in the United States are domestic workers. Oftentimes, the only options for a worker in that position are to either accept the abuse or quit altogether. Labor scholars have described this as modern day institutionalized slavery that, in unregulated corners of the world, can bear little discernible distinction between legitimate employment and servitude.

Domestic workers' experiences in the United States are part and parcel of a global narrative. The International Labour Organization (“ILO”), the United Nations agency tasked to oversee international labor issues, reports a shifting trend in female migrant labor where, increasingly, women are migrating not to join their partners, but instead for better employment opportunities otherwise unavailable in their home countries. To facilitate their passage, there has been a proliferation of illegal and unlicensed employment recruiters that operate in the shadows of regulated labor practices. Incidents of labor trafficking are common among these recruiters, who exploit unsuspecting female migrants seeking employment abroad. This is significant because domestic workers, in particular, comprise the largest group of female migrant workers.

In Malaysia, for example, some employment recruiters explicitly advise employers to retain the worker's passport and to forbid them “to talk or converse with others, walk alone, open the door to anyone, especially when they are alone in the house.” The onus for enforcing workers' employment contracts falls on both the domestic worker and the employer. Employers hiring domestic help must place a monetary security bond to guarantee the worker's labor permit. That bond is forfeited in the event that the worker leaves the employer. Consequently, the bond “can have the effect of encouraging employers who do not want to lose their money to place heavier restrictions on the personal freedoms of migrant domestic workers.” These restrictions include confining the worker to the home, and giving her little rest to minimize the opportunity she can have to communicate with others.

Employers in Japan and South Korea likewise institute pseudo-importation schemes to circumvent domestic laws that set workplace standards for pay, hours, and benefits. The practice largely revolves around labeling foreign domestic workers as “trainees,” rather than as bona fide employees, in order to exploit a loophole in labor laws that would otherwise require employers to adhere to higher labor standards. As a trainee, the average foreign domestic worker in South Korea receives sixty to seventy percent less pay than a similarly situated South Korean citizen. She also does not receive any compensation for overtime work.

Most notably, employment is often brokered through an “onward managing agency,” a middle man that periodically takes a portion of the worker's earnings as exchange for its services in securing her employment. These countries join an international community that explicitly excludes domestic workers from respective national legislation--countries that include, but are not limited to, Costa Rica, Croatia, Grenada, Norway, Japan, Jordan, Korea, and Malaysia. That the United States also suffers from shortcomings for domestic workers protections is symptomatic of a global norm.