San Francisco, CAIt would be prudent to presume an increase and influx in overtime pay lawsuits given the passage of the so-called domestic workers’ bill of rights in California and three other states (federal changes in kind are expected in 2015). Not necessarily because of the law, but primarily due to the possibility and expectation that employers of domestic workers will either ignore the guidelines or simply remain unaware of them.
There’s good reason to think this way. According to Ai-jen Poo, the director of the National Domestic Workers Alliance, most of the labor laws that protect American workers date back to the 1930s. That’s a long time, said Poo, during a recent interview on National Public Radio (NPR, 9/17/14). Even so, said Poo,
“two groups of workers were excluded - farm workers and domestic workers. And many of those exclusions remain in our labor laws today.”
Domestic workers have always been around. But their numbers are likely to increase as the baby boomers age and - more affluent than their parents - will choose to remain as long as possible in their homes, rather than give up their independence and move to a nursing home, senior’s residence or assisted care facility. Many of today’s seniors would rather have a domestic worker either visiting their home daily or actually living with them to provide service.
“One of the things that has really been striking to us is the aging of America with people living longer than ever because of advances in healthcare and technologies,” Poo told NPR. “And so the need for care supports and services for our growing aging population is exponentially increasing.”
Similarly, working professionals who can well-afford a live-in nanny or other individual to help with everything from cooking, cleaning, housework and home maintenance, view the domestic worker paradigm with a laissez-fare attitude that’s far removed from the normal employment environment governed by time clocks and employment records.
Little wonder there are so many complaints of in-home overtime violations - especially now that a popular method of compensating an in-home domestic worker, the day rate, has been rendered illegal by AB 241, legislation that came into effect in California at the beginning of the year, with similar bills adopted by three other states.
Domestic workers have been in a no-man’s land for some time
Until now, overtime pay laws did not apply to domestic workers. Now, they do. And yet, there is an expectation that domestic workers who provide services ranging from child care, to elder care, even custodial duties, will continue to be wronged even with the new legislation on the books - partly due to the environment. When a domestic worker performs duties in your home, many engagers don’t view the home as a traditional work environment and thus approach the employer-employee relationship much more casually.
These same engagers wouldn’t think twice about putting in for overtime at their own place of business - or negotiating time off in lieu of other compensation in kind - but expect a domestic worker to stay longer as needed, without any provision for overtime pay at the conclusion of an extended day or workweek.
Engagers of domestic workers also tend to forget that the domestic worker often has a family, with dependents, of his or her own. Tom Ammiano (D-San Francisco), who initially sponsored AB 241, said in a statement that “there’s no recourse if [a domestic worker is] being abused, there’s no place to go,” he said. “If you’re being asked to stay and cheat your own family out of your presence, you’re afraid of losing your job if you don’t.”
Fear of job loss no longer applies, as AB 241 protects that. Still, such treatment provides ample fodder for home care overtime lawsuits.
Domestic workers who have or are currently working within a non-conforming environment can take heart in the fact that AB 241 not only guarantees the rights of domestic workers when it comes to California overtime law and other statutes, but also the right and freedom for a worker who suspects abuse through lack of overtime pay, missed meal breaks or rest periods, to speak up and lodge a complaint without fear of job loss or reprisal.
There is now protection for the domestic worker who suspects that AB 241 is being circumvented by their employer. What’s more, attorneys are willing to take meritorious cases.
A 2012 study by the National Domestic Workers Alliance and Center for Urban Economic Development at the University of Illinois at Chicago found that 67 percent of live-in workers are paid below the minimum wage.
This is what AB 241, and similar statutes in three other states, is meant to curb. There are also federal improvements coming next year. Domestic workers, who suspect in-home care overtime violations and other abuses now curbed by the new law, are encouraged to speak up and seek justice.