C. A Legislative Vacuum

While domestic workers in the United States comprise a substantial portion of the low-wage services sector, the US legislature has been slow to afford them the same protections it does to other occupations. Given the unique position of this group of workers, one might expect that Congress would be receptive to regulate against abuses in much the same way it has to prevent child labor, set minimum wages, and legislate workplace discrimination. In fact, though, legislative movement toward greater equality on this front has been nearly non-existent. This Part details the absence of legislative protection in this area.

The New Deal era of the mid-1930s was arguably the most transformative period for labor rights in the United States. Growing alarm over the Great Depression, a period of extreme economic turmoil within the United States, spurred Congress to enact legislation to stave off economic collapse. As part of the national plan, Congress was quick to enact legislation to bolster workplace protections for laborers like steel, telephone, and textile workers.

Importantly, however, these pieces of legislation all excluded certain groups of workers from their coverage. Some of these groups included railroad and airline workers, independent contractors, and, notably here, domestic workers. In 1933, Congress passed the National Industrial Recovery Act (“NIRA”) to regulate market standards and promote fair competition when securing both minimum wages and maximum working hours among different industries. Two years later, it passed the Social Security Act (“SSA”), the precursor to the system of social welfare and insurance programs in place in the United States today. In 1938, Congress passed the Fair Labor Standards Act (“FLSA”) to set a national minimum wage and to mandate elevated wage rates for overtime hours. As originally passed, none of these pieces of legislation included domestic workers in its purview.

Notably, Congress passed the National Labor Relations Act (“NLRA”) in 1935 to confer protections on workers engaging in collective bargaining and unionizing activity. The ability to form unions was a powerful tool for workers who were unable to successfully lobby their employers for greater workplace benefits and protections on their own. The US labor union movement granted millions of workers such benefits as federal anti-discrimination laws and employee health insurance coverage. The federal statute offered a vehicle through which individual workers were allowed a seat at the bargaining table, giving them the opportunity, then, to voice their concerns regarding the employer-employee relationship.

Like the many landmark pieces of legislation passed during the New Deal era, however, the NLRA also excluded domestic workers from its purview. This legislative exclusion gave the employer wide latitude when responding to a domestic worker who asserted her right to organize for better wages or overtime compensation. For example, the exclusion permitted an employer to terminate a domestic worker, even if done in direct retaliation for participating in union activity. As a result, the exclusion effectively took away the domestic worker's right to unionize because without these protections, the cost of unionizing was far too high. Consequently, exclusion had the effect of disincentivizing workers from voicing their protest over inadequate standards and protections in the workplace.

Today, federal workplace protections for domestic workers remain meager. FLSA, for example, had initially written out domestic workers from its coverage by using the same language that was used in the NLRA. Though it was amended in 1974, the statute continues to exclude large portions of the domestic worker industry. This comes mostly from FLSA's outdated “companionship” exemption that excludes domestic workers who provide companionship services to individuals who are unable to care for themselves. The Occupational Safety Health Act, a landmark piece of legislation that set federal standards for health and workplace safety in the federal government and the private sector, similarly excludes domestic workers entirely from its purview, “[a] s a matter of policy.” Lastly, domestic workers are excluded from federal civil rights laws, like Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. These laws only cover businesses that employ a certain minimum number of employees. Because very few household employers meet these jurisdictional minimums, they are rarely considered employers for the purposes of these civil rights statutes.

Domestic workers remain excluded from the NLRA even now, nearly eighty years later. Under current laws, for instance, attempts to unionize not only run the risk of losing a job, but often also mean losing hope for permanent immigrant status within the United States. Given this, a domestic worker may well be less willing to voice her right to unionize.

The NLRA excludes domestic workers from its protections primarily in two ways. First, it does so explicitly within its statutory language. Its definition of “employee” excludes “any individual ... in the domestic service of any family or person at his home.” Second, the National Labor Relations Board (“NLRB”), the federal agency created by the NLRA to enforce the statute, excludes domestic workers by enforcing the NLRA's purview discretionally. Though it does not place a jurisdictional minimum on the number of employees that an employer must have--as does the FLSA or OSHA-- it does limit its power only to “cases involving enterprises whose effect on commerce is substantial.” Household employers who hire domestic workers are not included within the enumerated limitations, and as a result, neither are domestic workers. Consequently, even if the language in the NLRA were tweaked so that domestic workers were no longer explicitly excluded, advocates would still have to jump over the NLRB's discretionary hurdle. Given these considerations, the legislative obstacles on the federal plane are substantial.

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