Domestic Workers Bill of Rights

Housekeepers, caregivers for the elderly, and nannies all provide valuable services to families who need a helping hand. Domestic workers provide home and personal care, childcare, and house-cleaning services. Unfortunately, many domestic workers suffer exploitation. These workers are disproportionately women of color and immigrant women.

In many cases, they have limited options for legal protection. When the Fair Labor Standards Act became law in 1938, it excluded domestic workers. This changed in the 1970s. The workers were also excluded from the National Labor Relations Act of 1935 (NLRA). The NLRA gave workers the right to unionize and organize for better working conditions. The Civil Rights Act of 1964, a landmark anti-discrimination law, doesn't include small employers. As a result, employers can discriminate against domestic workers based on attributes such as gender, race, or national origin under federal law.

The Occupational Health and Safety Act also excluded domestic workers from protection. The 1970 labor law established a worker's right to a safe work environment.

According to a 2021 National Domestic Workers Alliance survey of domestic workers:

• Only 16% of domestic workers have a written agreement with their employer.
• Over one-third of domestic workers don't get meal and rest breaks. And only 34% of those who get them get paid for them.
• 23% of domestic workers don't feel safe at work.

That's why several states and some cities passed domestic worker protection laws. The legislation provides them with employment benefits and legal protections. Lawmakers have introduced federal legislation to help protect domestic workers nationwide.

What Is a Domestic Worker?

Domestic workers are paid household staff who sometimes live in their employer's home. They include housekeepers, home health aides, caregivers, babysitters, nannies, and caretakers.

Domestic Worker Employment Laws

Employment is often unofficial. It happens without filling out I-9 forms or checking immigration status. Many domestic workers get paid in cash and "under the table." Employers can avoid paying taxes or keeping employment records by using this work arrangement.

As a result of their unofficial work status, domestic workers are vulnerable to abuse. Common problems for domestic workers include wage theft, harassment, physical abuse, and exploitation. Some live-in domestic workers may have to work around the clock, with little payment and no time off. Domestic workers may have few options after losing their jobs, getting injured on the job, or mistreatment.

The FLSA applies to most domestic workers. The law also applies to direct care workers, such as certified nursing assistants, home health aides, personal care aides, and other caregivers. The law got amended in the '70s to include domestic workers and direct care workers. Federal law provides protections for minimum wage and overtime pay.

There are exceptions. Casual babysitters and domestic service workers who provide companionship services to the elderly or those with illnesses, injuries, or disabilities don't have to get paid the federal minimum wage or overtime pay. Live-in domestic service workers don't have to get overtime pay.

National Domestic Workers Rights Bill

While the FLSA provides wage and hour protection, no federal law provides comprehensive protection for this workforce section. Lawmakers have introduced federal domestic workers' bill of rights laws, but the proposals have yet to become law. The proposed legislation would bridge the gap created by the lack of legal protections under other laws. Lawmakers introduced The National Domestic Workers Bill of Rights in 2019.

If adopted, the National Domestic Workers Bill of Rights will include:

• Paid sick leave for domestic workers to take care of themselves or their families
• Civil rights protections, including protections against workplace harassment and workplace violence
• Safety and health coverage under the Occupational Health and Safety Act
• Protection from sexual harassment
• Rights to meal breaks and rest breaks
• Written agreements and policies
• Protection against losing pay because of last-minute cancellations
• Employers must provide written notice of termination and provide at least 30 days of lodging and two weeks of severance pay to terminated live-in domestic workers

States with Domestic Workers Rights Laws

While federal protections are lacking, several states have laws protecting domestic workers and direct care workers. According to the National Domestic Workers Alliance, 11 states, the District of Columbia, and several cities have approved domestic workers' bills of rights and protections.

New York was the first state to pass a Domestic Workers Bill of Rights law in 2010. Since then, other states and cities have passed similar laws. States with domestic worker rights laws include:

• California
• Connecticut
• Hawaii
• Illinois
• Massachusetts
• New Jersey
• Nevada
• New Mexico
• New York
• Oregon
• Virginia
• Washington, D.C.

Common State Law Requirements

The provisions of each law vary by state. Generally, domestic workers' rights protections extend many existing labor law benefits, specifically for domestic workers. Examples of domestic worker bill of rights provisions include:

• Minimum wage requirement
• Overtime over a certain number of hours in a week
• Day of rest minimum
• Paid time off
• Sick time or time off to care for family members
• Workplace discrimination protections
• Sexual harassment protection
• Disability coverage
• Workers' compensation insurance
• Whistleblower protections and protection against retaliation
• Work agreements and policies in writing. Employers must often provide domestic workers with a written contract covering wages, sick leave, benefits, etc.

Obligations for Employers

Employers hiring domestic and direct care workers should check the FLSA and state law to understand their obligations. This may include providing a written employment agreement. It could include providing the worker with policies on hours of work, time off, vacation, and sick leave. The U.S. Department of Labor has sample agreements you can use to create contracts. Some employers may have to pay into disability insurance and workers' compensation insurance.

Filing a Claim for Domestic Worker Rights Violations

If you have questions about complying with domestic worker or direct care worker laws, talk to an employment law attorney for advice. If you're a domestic worker and believe your employer is violating the law, you can file a claim to enforce your rights. Find a local employment law attorney today.