Labor rights for U.S. domestic workers

Labor standards–wages, hours, benefits and age limits–were a thin patchwork in the U.S. until the Fair Labor Standards Act (FLSA) of 1938. The Franklin Roosevelt administration considered FLSA its most significant social legislation after the Social Security Act of 1935. In its initial form, FLSA provided a 25-cent-an-hour minimum wage, a 44-hour straight-time work week, time-and-a-half pay for overtime and a minimum working age of 16. However, there were exceptions and exclusions.

The Roosevelt administration was opposed by an unreconstructed Supreme Court, losing the issues in a 1935 case [Schechter Poultry] and losing in its “court packing” efforts of 1937. To resolve Constitutional issues, FLSA focused on occupations related to interstate commerce–notably manufacturing–generally omitting coverage for agriculture, construction and many services: transportation, retail trade, government, health care, education, publishing, machinery repair and domestic work.

The 1938 law also excluded coverage for union shops, as endorsed by both AFL and CIO out of fears that a wage floor might presage a wage ceiling. It survived two Supreme Court challenges in 1941. [Darby and Opp Cotton] By then, former Pres. Roosevelt was serving a third term and had appointed a majority of the Court: Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas and Frank Murphy.

Strengthening standards: Since World War II, labor standards have gradually been strengthened through four main channels:
• FLSA regulations, expanding coverage and increasing requirements
• FLSA amendments, removing and modifying exceptions and exclusions
• state and local standards, expanding coverage and increasing requirements
• interpretations, policies and lawsuits sometimes expanding coverage

Trends in federal minimum wage

FederalMinimumHourlyWage1938to2016
Source: U.S. Department of Labor, 2016

There have been three notable eras in federal minimum wage. The Franklin Roosevelt through the Lyndon Johnson administrations substantially increased the wage level, starting around $4 an hour and growing to around $10 an hour–in 2016 dollars–during 1938 through 1968. The Nixon through the Reagan administrations substantially shrank the wage level, from around $10 to around $6, during 1968 through 1988. The Herbert Bush through the Obama administrations maintained a stagnant wage level between about $6 and $8, during 1988 through 2016.

Labor standards in retail trade made progress through state initiatives–notably in setting minimum wages. Every state now has laws that benefit some workers outside the initial FSLA focus. Even in the “at will,” “right to work,” wage-and-hours-free state of Mississippi, employers can’t fire a worker because of jury service, if a worker provides “reasonable notice.” As of the start of 2016, more than half the states had a statewide minimum wage higher than the federal standard: 29 states plus the District of Columbia.

Currently the District is highest at $11.50 an hour, while California and Massachusetts are next at $10.00–to be compared with the $7.25 federal standard since July, 2009. Alabama, Louisiana, Mississippi, South Carolina and Tennessee have no state minimum wage. Georgia and Wyoming wage levels are below the federal minimum. The Deep South was the region most hostile to FLSA in the 1930s and remains the region most hostile to labor today.

Coverage struggles: Since early years of labor standards, starting with the first laws enacted in 1912 by Massachusetts, many groups of workers did not benefit. The U.S. Fair Labor Standards Act, in both initial and current forms, begins by stating a focus on “industries engaged in commerce or in the production of goods for commerce.” [P.L. 75-718, Sec. 2(a) and 29 USC 202(a)] “Commerce” under FLSA has been limited, both initially and now, to mean “trade…among the several States….” [P.L. 75-718, Sec. 3(b) and 29 USC 203(b)]

FLSA allows states and cities to enact stronger requirements. During the Truman and Eisenhower administrations, some states and cities began to close gaps in wage and hour coverage left in 1938. So far, no labor scholar has published an inventory of those initiatives, but sectors often involved appear to be retail trade, construction and transportation.

At the same time, business interests began to promote anti-union, “right to work” laws, authorized under the 1947 federal Taft-Hartley Act. The earliest of them, predating the act, was an amendment to the Arkansas constitution. Statewide laws are currently found in 25 states that are generally hostile to labor.

“Right to work” states

RightToWorkStated2016
Source: AFL-CIO, 2016

The Kennedy and Lyndon Johnson administrations began to expand FLSA coverage beyond narrow views of interstate commerce dating from the Great Depression and earlier. FLSA amendments enacted in 1961 included employees of retail trade firms with at least $1 million in annual revenue. Amendments enacted in 1966 included employees of schools, nursing homes, construction firms, commercial laundries and large farms.

Domestic workers: Sustaining work performed inside and near homes–care for children, the elderly, sick and disabled, cleaning, cooking, pet and plant care, laundry and other household services–had not been a focus of federal and state standards, in contrast with work performed away from homes. Domestic work currently remains at the far reaches of labor standards in most states.

A pioneering effort in Massachusetts–coordinated by Melnea Cass, the legendary Boston activist for civil rights and housing–resulted in the first state labor standards law covering most domestic workers. Chapter 760 of the Acts of 1970 provided coverage under the state’s wage and hours law: minimum wage, maximum weekly straight-time hours, overtime pay and contributions to Social Security and Medicare. For workers employed more than 16 hours per week, the 1970 law required workers compensation and unemployment insurance. These were all standards that had applied to most other jobs in Massachusetts.

FLSA amendments enacted in 1974 set federal standards for some domestic workers but specifically excluded workers providing “companionship services for individuals who…are unable to care for themselves.” It also excluded all live-in workers from overtime pay benefits. [29 USC 213] Intermittent and varying work hours and direct employment by householders have proven to be areas of difficulty. Some observers estimate that two-thirds or more of U.S. employers subject to FLSA fail to comply fully with the law.

In 2013, the Obama administration revised regulations to extend FLSA coverage to all domestic workers employed by agencies, regardless of duties, effective at the start of 2015. However, some workers without specialized training may not be eligible for overtime pay, and workers directly employed by householders remained excluded from coverage. These and other gaps are slowly being addressed by state laws specific to domestic workers.

As of August, 2016, seven states had enacted some form of enhanced labor standards for domestic workers, and in six states those had come into effect. The first new law was in New York, enacted in 2010, followed by Hawaii and California in 2013, Massachusetts in 2014, Oregon and Connecticut in 2015 and Illinois in 2016. None of these states have enacted anti-union, right to work laws. While provisions of the recent laws about domestic workers vary greatly, most take into account special situations of live-in workers.

Connecticut has the weakest of the new laws, providing only a guard against harassment. Massachusetts and Hawaii probably have the strongest. Only Massachusetts requires sick leave and parenting leave. Only Hawaii requires disability and health care insurance. Most states require time-and-a-half overtime pay, workers compensation insurance and unemployment insurance. Massachusetts had already required those benefits, since 1970. Most new laws require at least a day per week off-duty and some amount of paid personal leave. Some of the new requirements are stronger than those of federal labor laws and regulations.

Information and compliance: Elusive elements affecting standards for domestic work remain information and compliance. That generally takes organization. NAACP chapters were involved during pioneering efforts in Massachusetts, in the 1970s. More recently, National Domestic Workers Alliance, first located in New York City but now in Chicago, was organized in 2007 from experience with Domestic Workers United, founded in 2000 in New York City. Massachusetts Coalition for Domestic Workers was founded in 2010 and is located in Boston.

During the last few years, the domestic worker organizations and their academic partners have surveyed many domestic workers and employers in several U.S. cities. They provide unique information about work experiences and direct employment by householders. So far, however, most publications do not measure a shadow economy of unreported wages and undocumented workers that are sometimes mentioned in general media but rarely surveyed. A UCLA survey of about 500 direct employer households reported 14 percent paying “out of pocket.”

As anyone who has run an above-ground small business knows, complying accurately with labor law is complex. So far, no state has set up a clearing house to provide simple and centralized access to required record-keeping, reporting and payments. Large payroll services–PayChex and ADP–do not provide all the services needed to comply with state laws and are tedious to use. Concierge services, mostly available from accounting firms, can be very costly. The domestic worker organizations have not seen these issues as parts of their missions. A barrier their reports rarely acknowledge is that there is no method to report wages or to pay Social Security and Medicare contributions for undocumented workers.

– Craig Bolon, Brookline, MA, August 25, 2016


Enhanced state labor standards for domestic workers, Brookline Beacon, as of August, 2016

Massachusetts Coalition for Domestic Workers (founded 2010), 197 Friend St., Boston, MA, 617-603-1540

National Domestic Workers Alliance (founded 2007), Chicago, IL, 872-216-3684

Saba Waheed, Lucero Herrera, Reyna Orellana, Blake Valenta and Tia Koonse, Profile, practices and needs of California’s domestic work employers, UCLA Labor Center, May, 2016

Minimum wage laws in the states, Wage and Hour Division, U.S. Department of Labor, 2016

Natalicia Tracy, Tim Sieber and Susan Moir, Invisible no more: domestic workers organizing in Massachusetts and beyond, ScholarWorks, University of Massachusetts Boston, October, 2014

Benjamin Collins, Right to work laws: legislative background and empirical research, Congressional Research Service, January 6, 2014

Minimum wage, overtime protections extended to direct care workers by Labor Department, U.S. Department of Labor, December 17, 2013

Rachel Homer, What’s happening with domestic workers’ rights?, On Labor (Cambridge, MA), November 6, 2013

Gerald Mayer, Benjamin Collins and David H. Bradley, The Fair Labor Standards Act: an overview, Congressional Research Service, June 4, 2013

Karen Michael, Labor law: the Supreme Court and the Fair Labor Standards Act, Richmond (VA) Times-Dispatch, April 28, 2013

Nik Theodore, Beth Gutelius and Linda Burnham, Home truths: domestic workers in California, National Domestic Workers Alliance (New York, NY), 2013

Linda Burnham and Nik Theodore, Home economics: the invisible and unregulated world of domestic work, National Domestic Workers Alliance (New York, NY), 2012

History of changes to the minimum wage law, Wage and Hour Division, U.S. Department of Labor, 2007

Howard D. Samuel, Troubled passage: the labor movement and the Fair Labor Standards Act, U.S. Bureau of Labor Statistics, Monthly Labor Review 123(12):32-37, 2000

Dora L. Costa, Hours of work and the Fair Labor Standards Act: a study of retail and wholesale trade, 1938-1950, National Bureau of Economic Research, Industrial and Labor Relations Review 53(4):648-664, 2000

Jonathan Grossman, Fair Labor Standards Act of 1938: maximum struggle for a minimum wage, U.S. Department of Labor, 1978

Peyton Elder, The 1974 amendments to the federal minimum wage law, U.S. Bureau of Labor Statistics, Monthly Labor Review 97(7):33-37, 1974

Leon H. Wallace, The Fair Labor Standards Act, Indiana Law Journal 22(2):113-149, 1947

Opp Cotton Mills, Inc. v. Administrator, U.S. Supreme Court, 312 U.S. 126, 1941

United States v. Darby, U.S. Supreme Court, 312 U.S. 100, 1941

U.S. Fair Labor Standards Act, in original form as Public Law 75-718, 1938

Schechter Poultry Corp. v. United States, U.S. Supreme Court, 295 U.S. 495, 1935

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