Articles Posted in Domestic Employment

The United States Department of Labor says that “nearly all” of the almost 2 million direct care workers in the United States work for third-party home care agencies, rather than directly for the client who receives their care services. At present, as recently confirmed by the United States Supreme Court’s decision in Long Island Care at Home, Ltd. v. Coke, the Fair Labor Standards Act exempts providers of “companion services” from the FLSA’s general minimum wage and overtime requirements.

The DOL’s “final rule“, which takes effect on January 1st of next year, clarifies and narrows the definition of “companionship services,” requires the recording of hours worked by this category of employees, and–most importantly–precludes third-party providers of home care from claiming the companionship services exemption at all. This means that starting next year the vast majority of home care workers will–at long last–be protected by the FLSA.

Twenty states have at least some state-level requirements regarding the payment of minimum wages or overtime to these workers. But the U.S. population as a whole has a set of extremely inconsistent and often very weak standards regulating the employment of home care workers, and most of those workers are left with few legal protections at all. The disempowerment and underpayment of this population of workers is made all the more worrisome when we consider that the large majority of them are also women and racial minorities.

On Thursday, January 9th 2014, the United States Attorney for the Southern District of New York, Preet Bharara, charged Deputy Consul General of India in New York, Devyani Khobragade with visa fraud and abuse of Sangeeta Richard, her nanny and housekeeper. Ms. Khobragade was arrested on December 12, 2013, searched and locked in a cell, and had to pay a $250,000 bail to be released. The diplomat informed the U.S. Embassy in India that she would pay $4,500 per month to her domestic worker but had allegedly concluded a private agreement with her employee to pay her $3.31 an hour. Aside from paying a significantly lower minimum wage, Ms. Khobragade was accused of verbally harassing her employee, making her work between 94 and 109 hours per week and taking her passport away. In other words, Ms. Khobragade allegedly violated U.S. labor and wage laws despite having pledged in her servant’s visa application that she would follow them. Visa applications for domestic workers accompanying diplomats are approved on the basis of whether the diplomat will follow U.S. labor standards.

The Indian government responded to this incident with outrage and even some retaliation, including shutting down all “commercial activities” at the embassy club and removing the security fences at the U.S. Embassy in India. Also, the Indian government’s outrage was demonstrated through the various statements of state officials who describe the diplomat’s treatment as “despicable and barbaric” and who criticize the U.S. government’s requirement that diplomats pay domestic workers at least minimum wage to be eligible for a visa to bring their servants to the country. Indian government officials allegedly stated that Indian diplomats should not be subject to U.S. labor laws because they do not earn as high of an income as U.S. diplomats and the low pay offered to domestic workers is not unfair because it would be considered a windfall in India.

Meanwhile, activists pushing for increased protection of domestic workers against abuse have criticized U.S. immigration laws as enabling the abuse of foreign domestic workers. Currently, it is international practice to allow diplomats to employ domestic assistance while working on an assignment overseas. U.S. immigration laws offer different visa categories to allow diplomats to bring their domestic servants to the U.S; employers may request to bring domestic assistance as representatives of foreign governments or international organizations so long as they pay the employee minimum wage and they limit his or her schedule to a maximum of 40 hours per week.

A new law protecting domestic workers has gone into effect in New York State, guaranteeing expanded rights for these employees. After campaigning for the most basic protections, like paid vacation and sick days, overtime pay and other basic rights that most employees take for granted, domestic workers are finally gaining well-deserved employment rights.

The new law requires that workers be paid for all hours worked beyond 40 hours in a week, a requirement that previously did not apply to domestic workers. The new law also provides for basic protection against sexual harassment and hostile work environment, and provides recourse for unlawful termination in violation of this law.

While the law does extend important protections to domestic workers, it is by no means comprehensive. The law protects workers from certain discrimination, based on national origin, religion or sex but does apply the broader protections of New York State law on age discrimination or sexual orientation discrimination.