The Uphill Battle to Enforce Domestic Workers' Rights
In her twenty-two years of working as a nanny, Jennifer Bernard has seen her share of humiliations—sixty-plus-hour weeks, low pay with no overtime, last-minute schedule changes. “Sometimes they’d call at the end of the day and say ‘We have to have a late dinner,’ ” she says. Even when Bernard had her own young son at home, she felt like she couldn’t say no.
But that sense of powerlessness has all but vanished since the New York Domestic Workers’ Bill of Rights went into effect in 2010. When Bernard was looking for a new job six months ago, the first time she had looked for work since the law passed, she felt able to make her limits and expectations clear. “I said I was not willing to do some kinds of housework,” says Bernard, who’s 56 and came to this country from Trinidad in 1990. “I said my job is to take care of the baby and I do it well and it takes a lot of time. I said it and did not feel bad about it.”
Perhaps more remarkable, the Park Slope mother who went on to hire Bernard to care for her newborn was similarly straightforward. “For the first time, I was asked to fill out an application and do a background check,” says Bernard. “And then it just hit home with me that this is a real job.”
This was the intended effect of this first-of-its-kind state law: that by guaranteeing them overtime at the rate of time and a half, a day off every week, and a statement of hours, among other basic labor protections, privately employed nannies, cooks, housekeepers and home health aides would be treated more like other workers.
Yet even with the law in place, many nannies in New York aren’t in employment negotiations like Bernard’s, according to a survey of hiring and firing practices, wages and hours, and general treatment of childcare workers released by the neighborhood group Park Slope Parents in November. The study found that only 15 percent of more than 1000 respondents reported paying their nannies at least 1.5 times their official rate when they worked more than 40 hours a week, as the new law requires, and that 44 percent didn’t pay any overtime at all. The group found that nannies are paid an average of between $14.22 and $16.32 per hour, depending on the number of children they care for. (Minimum wage is $7.25 in New York state.)
Local media took the numbers as an indictment of the Brooklyn neighborhood. A Daily News story headlined “Tough ‘sit’! Park Slopers stiffing nannies OT” pretty much summed up the coverage: “They're wealthy, socially conscious and obsessed with their kids—but many Park Slopers aren’t following the law when it comes to their nannies.”
But tarring Park Slope parents as particularly miserly or pretentious misses the true significance of the survey’s findings. Less than half of the people who responded to the survey actually live in the brownstone-filled neighborhood adjacent to Prospect Park. (The rest live in nearby areas.) And, if anything, the relatively wealthy and well-informed Brooklyn residents who voluntarily chose to respond to the survey are probably doing better by their employees than most others. Park Slope is one of the few places in the country where there is any visible effort to improve treatment of domestic workers. The survey findings were highlighted at a day of appreciation for local nannies co-sponsored by Jews for Racial and Economic Justice, a group working with families in the area to come up with a community standard for decent treatment of domestic employees, and Domestic Workers United, an organization of domestic workers that has worked in and around Park Slope for more than five years. Priscilla González, DWU’s executive director, says she finds the area to be particularly responsive to the group’s efforts: “We know that Park Slope families want to do the right thing.”
We can’t know for sure how most domestic workers are treated and paid, since no one has comprehensively studied it. In its earnings data, the US Bureau of Labor Statistics lumps childcare workers employed by centers with those who work for families—the median annual pay for both groups together is $19,300. And no one tracks the payment of over-time to childcare workers in the rest of the state. Lack of reporting is one reason that enforcement of the law is proving a steep challenge. Even though employers can be fined for retaliating against workers who file a complaint against them, fear of losing a job is certainly one of the reasons that few complaints have been filed thus far. Another is a lack of awareness of the new rules, and the fact that those rules are bringing change to a long tradition of treating domestic work as a private matter. Nicole Hallett, an attorney who works in a legal clinic for domestic workers run by the Urban Justice Center, says she has yet to meet a nanny through the clinic who is being paid overtime correctly. “Overtime abuses are rampant,” says Hallett.
Penalties for those abuses are still few and far between. Since November 2010, when the law went into effect, and mid-February of 2012, only five complaints had been brought to resolution, says Lorelei Salas, who at that time stepped down as the deputy commissioner for worker protection at the New York State department of labor. Cuomo administration sources say they can’t offer an updated number, since they haven’t separated domestic worker cases from other labor wage-and-hour-violation cases, but note that all complaints are ultimately investigated and that the amount of back wages, civil penalties and damages awarded to all workers in the first quarter of this year was higher than awarded in the first quarter of last year.
At least one of the investigations handled by the Department of Labor did result in more than $100,000 in back-wages and penalties being awarded to a domestic worker, according to the administration. And other complaints under the domestic worker law are being resolved before they reach the department of labor. The Urban Justice Center’s clinic has handled sixty such cases, twenty-six of which have yielded cash totaling more than $150,000 for the workers, according to Hallett. But if, as the Park Slope Parents survey suggests, at least 85 percent of surveyed parents aren’t paying their childcare workers the overtime they’re legally due, and there are between 120,000 and 240,000 domestic workers statewide, there is far more work to be done.
The nature of the business is itself an obstacle to enforcement. “A home is not an open place of business, not a factory or restaurant where you can just walk in,” says Salas, who is now legal director of Make the Road New York. “I’m not sure anyone would be willing to do [that] in a home.” Salas also notes that state investigators are likely to find more violations in places that employ lots of people—like restaurants and factories—than in homes, and that “agencies look for where they can have the best bang for their buck.”
While they push for enforcement, domestic workers are still fighting for labor protections that weren’t included in the law, such as the right to collectively bargain, which the law stopped short of granting. (The law directed the Department of Labor to study the feasibility of collective bargaining for domestic workers. The department produced a report acknowledging challenges in December 2010.) No doubt, the ability to negotiate as a group would bring nannies and other privately employed domestic workers closer to getting severance pay, advance notice of termination, and sick days—other benefits they still lack. Perhaps even more important, it would help bring them into the larger national movement of agency-employed domestic workers. But federal and state labor laws specifically prohibit privately employed domestic workers from unionizing. And, so far, only a fraction of domestic workers employed by agencies—mostly home health aides paid with Medicaid dollars—have joined unions.
Many of them were on hand at the New York Care Congress on June 3, when about 600 people crammed into Pace University’s gymnasium to demand dignity and flex their political muscle. The event focused on boosting wages and benefits in this field. But its power lay in focusing on the humanity that unites care workers and their employers.
“We’re here because we care about each other and the future of our country,” Ai-jen Poo, the director of the National Domestic Workers Alliance, shouted to the crowd. Poo used the same emotional appeal when she led New York’s effort to pass the Domestic Workers Bill of Rights a few years back: that the real, loving people one both sides of the domestic work equation stand to benefit from improved treatment of workers, and that the best way to do it is through politics. “Caring is about voting,” Poo concluded over the hooting of her supporters.
In the audience, clapping and waving a paper flag along with her fellow workers, Jennifer Bernard agreed that political organizing is the answer for domestic workers. “Being a nanny is an isolated job,” said Bernard, “and we need to be able to work together.”