Maria, a former domestic worker, talks about her experiences in San Francisco, Monday, May 5, 2008. Maria came to San Francisco to be a caregiver for a family from her hometown in southern Mexico. The family paid her way here, then kept her in a house for a year, where she cared for a 78-year-old wheelchair-bound woman. They paid her $300 a month but sent her check directly to her family, so she never had any money. (AP Photo/Marcio Jose Sanchez)
Fifty years ago on August 28, thousands of protesters descended on Washington, DC. The protest is colloquially known as the March on Washington, but it’s worth remembering its full name: “The March on Washington for Jobs and Freedom.” In fact, the economic repression people of color experienced played a central role in galvanizing the march and in the demands the marchers made.
The protesters laid out ten concrete demands, half of which had economic implications: legislation barring discrimination in public housing, a federal jobs training and employment program, an increase in the minimum wage, an act barring discrimination by governments and contractors, and an expansion of the Fair Labor Standards Act (FLSA) “to include all areas of employment which are presently excluded.”
Progress on these economic demands has been slow and bumpy. But that last bullet-point is a very concrete dream that has been denied. While the FLSA has been expanded since then, a whole category of workers—who are also disproportionately people of color—are still left out.
The Fair Labor Standards Act created a floor for wages and a ceiling on hours with overtime pay for extra work. But when it was crafted in the 1930s, certain workers were deliberately edged out of its protections. As Suzanne Mettler writes in Dividing Citizens, it was the first such bill to be written in gender-neutral terms, but it still defined which occupations fell under its purview in such a way that “the majority of low-paid women workers and non-white men, those who could have benefited most from national labor standards, were exempted from coverage.” Women’s retail and service jobs were mostly left out, as were agricultural jobs often held by people of color. Excluding the latter meant that “50 percent of southern African American employees, men and women,” were omitted. “The combined exclusion of agricultural and domestic workers also omitted near majorities of ‘Mexican American and American Indian women and men, as well as substantial numbers of Filipino-Americans and other Asian Americans’ from coverage,” Mettler writes.
These exclusions were driven by political considerations—Southern Democrats were staunchly against regulating agriculture—and constitutional considerations about the reach of the government’s ability to regulate commerce and the assumption that much of women’s domestic work was a different category altogether. President Franklin D. Roosevelt himself stated, “No law ever suggested intended a minimum wages and hours bill to apply to domestic help.” They weren’t considered to be workers but simply “help.”
Forty years later, Congress expanded the FLSA to cover domestic workers. But a carve-out was again included that still left many out. Those who provide “care and fellowship” to the elderly and disabled were omitted. This has since been dubbed the companionship exemption. While in theory this should only exclude those who simply provide some company to the homebound, it has been so widely interpreted that homecare workers who bathe, feed and intensively care for the elderly and disabled find themselves without minimum wage and overtime protections. In 2007, the Supreme Court told Evelyn Coke, a black homecare worker, that her employer was acting legally when it refused to pay her overtime despite her long hours.
Coke is the typical face of a homecare worker: women of color predominantly hold these jobs. More than 90 percent are female and half are people of color. And while they are a rapidly growing part of the workforce—nearly 2.5 million people are homecare workers, making up one of the largest occupations, and the number of jobs is expected to grow by 70 percent over the next decade—and the work can be incredibly physical and happen at any hour, they make just $9.70 per hour at the median, or $20,170 a year. Nearly 40 percent make so little that they have to rely on public benefits like food stamps and Medicaid to survive. Many report working extremely long hours yet being denied any overtime pay—and thanks to the companionship exemption, they have no legal recourse.
The marchers who commemorated the 1963 event this past Saturday have some reason to feel optimistic about progress on this one aspect of the ten original demands: President Obama promised in December 2011 that the Department of Labor would undo this loophole, and he introduced a new rule that would extend the FLSA to homecare workers. Yet action is still stalled. The DOL extended the public comment period twice despite the fact that 80 percent of the comments received were in favor. A report from the Coalition for Sensible Safeguards notes that the change “remains stuck down the regulatory ‘rabbit hole’ with no certainty of when it may emerge.”
Ai-Jen Poo, the head of the National Domestic Workers Alliance who has been working tirelessly on changing this rule, recently told The Nation’s Josh Eidelson that she hopes to see the change come through by the end of this month. Homecare workers can’t wait any longer. They provide a vital service that will increasingly be in demand as the baby-boom generation ages and needs care. Including them in labor protections is one small part of following through on the demands for racial justice made a half-century ago.