Friday, September 2, 2011

Legal protections for domestic workers (Part 1 of 2): legal regulation of the private realm

I would venture to say that the majority of Californians recall the election-threatening scandal that erupted last September and October surrounding Gubernatorial Candidate Meg Whitman's infamous undocumented domestic worker. In case you missed it, many analysts, including San Francisco Chronicle Political Writer Carla Marinucci, labeled it a story that "undermine[d] the carefully crafted message behind Meg Whitman's gubernatorial campaign." According to the San Francisco Chronicle, this domestic worker had been under Ms. Whitman's employ for 9 years, and most certainly a part of her day-to-day life, this would make her privy to information regarding Ms. Whitman's private affairs that most of the world will never know.

Perhaps the allegations and scandal that erupted last fall were part of the impetus for California Assemblymember Tom Ammiano (D-San Francisco) to sponsor Assembly Bill 889, colloquially dubbed the "Domestic Worker Bill,"or the "Babysitting Bill" which proposes new legislation which would regulate labor provisions for domestic employees, including,
  • "[P]rovide a private right of action for a domestic work employee when those regulations are violated by his or her employer..."
  • "[P]rovide an overtime compensation rate for domestic work employees."
  • "[P]rovide its employees with specified information regarding their wages either semimonthly or at the time of each wage payment," aka a paystub.
  • "[S]ecure the payment of workers' compensation for injuries incurred by their employees that arise out of and in the course of employment."
As the proposed language in the bill states, it is proposed in part,
Because domestic workers care for the most important elements of their employers' lives, their families and homes, it is in the interest of employees, employers, and the people of the State of California to ensure that the rights of domestic workers are respected, protected, and enforced.
Reflecting in part upon the idea of separate spheres, or domesticity, as referred to in Joan Williams' Unbending Gender, this bill has particularly struck me because it seems to be doing exactly what the law has traditionally not done. That is, the bill attempts to regulate the private domestic sphere that was long thought of as being separate from, and indeed not able to be regulated by, the law. Legislatures, being part and parcel to the legal process in the public sphere, were at one time thought to have no jurisdiction over this world, especially at the height of the cult of "separate spheres."

One striking part of this bill is that it is simply extending protections to domestic workers that have long been present in all other forms of labor in California. Specifically, the bulk of the bill would be geared towards removing domestic workers' exempt status from already existing protections, rather than creating new protections solely for them.

Also fascinating are the vehement objections to this bill. Whenever law attempts to regulate the domestic, it appears to be much more controversial than similar laws regulating what has been deemed public, including virtually all other forms of labor regulations. On the more moderate end of criticisms, some media cite the rise of costs as being the primary reason the bill might not pass. On September 1, for example, News 10 in Sacramento covered the bill in an Internet article entitled Domestic worker bill sparks outrage from parents. In the article, many parents complain about what would become, as one parent said, an unfair "burden" on young parents. Additionally, many saw the additional costs as unreasonable, and demands, such as breaks, something they could not reasonably provide.

However, in the more extreme areas of the Internet, discussion of the bill quickly becomes more disturbing. On August 30th, California Senator Doug LaMalfa (R-4th Senate District ("covering the vast and predominantly rural area that encompasses 12 counties: Butte, Colusa, Del Norte, Glenn, Nevada, Placer, Shasta, Siskiyou, Sutter, Tehama, Trinity and Yuba Counties")) wrote a piece about the bill in Southern Nevada County's Most interestingly, he wrote,
Unfortunately, the unreasonable costs and risks contained in this bill will discourage folks from hiring housekeepers, nannies and babysitters and increase the use of institutionalized care rather than allowing children, the sick or elderly to be cared for in their homes. I can't help but wonder if that is the goal of AB 889 – a terrible bill that needs to be stopped.
In essence, Mr. LaMalfa is saying that passing this bill will effectively make public what was previously the private sphere. More extremely, one commenter to an article posted by CBS Los Angeles entitled Nanny State? Calif. May Force Parents To Pay Babysitters Workers’ Comp, OT, appropriately named "Fed up with California" writes,
Damit[(sic)] California! STOP! You have put your nose in to so much of our personal business and lives that you have made this the worst state in America. You idiots in the capitol can’t balance the budget and fix the overwhelming crime problems and unemployment issues so instead you spend tax payers time coming up with your “Nanny” laws....
As this writer seems to be suggesting, when all else fails in the capitol--an unbalanced budget, failure to address rising crime rates, rising employment rates--lawmakers can turn to a new, more manageable sphere, the private one of the home.

I plan to write an additional post about how this law plays into socioeconomic and racial issues involved in childcare and the "second shift." Also, the obvious elephant in the room: who can afford to either stay at home or employ a domestic worker.


S said...

Interesting to note is that New York passed a similar bill that went into effect on November 28, 2010. It is my understanding that New York was the first state to enact such a law, and it took six years of debate to successfully pass the law. See New York State, Department of Labor, Legal, Domestic Workers bill of Rights, (last visited 09/04/10).

I think it is important to educate the average Californian of the injustices that AB 899 attempts to remedy (compensation for overtime, a right to a private action for violations of basic rights to safe working conditions many take for granted, see Also, many of the people posting comments in response to articles about the bill use the word "babysitter" when referring to those whom the bill protects. The use of the word is telling. In my mind, babysitter is used to describe a person who watches a child occassionally and for only a few hours at a time. A domestic worker, whom the bill is intended to protect, are those who traditionally provide more than child care. They clean the home. Do laundry. Run errands. Cook meals. Transport children from school to sports, to rehearsal, to study groups and back home. These people are more than babysitters, they are the glue that enables families to function as they like by reliving parents of the responsibilities they have traditionally held.

Californians would also benefit from a history lesson explaining why domestic workers do not benefit from the same protections enjoyed by those employees covered by the Fair Labor and Standards Act (FLSA) and the National Labor and Relations Act. Caitlin indicated she will be talking about the socioeconomic and relation issues involved in child care and domestic work in a future post. I hope she has the opportunity to discuss the history of why domestic workers are no included, as race and socioeconomic issues are involved. In the mean time, you may wish to check out an article published by Ms. magazine discussing the New York bill mentioned earlier. The fourth paragraph in the article touches upon the history leading to domestic workers being excluded from the basic protections afforded to other employees. See

tomindavis said...

Astonishing that some assembly members view this is as an "unreasonable" constraint on parents. But then again, that's not too far from the rhetoric that says that limits on pollution and emissions are unreasonable constraints on business, and so on. Remarkable, however, to see which government regulations of our private home lives (of which there are many) get singled out by opponents as examples of a nanny state (although, pardon the pun, the name here is quite apt). Yet most telling is the inability for some pols to see that we are talking about full-time workers, whose workplace happens to be a home. The fact that their work creates a special feeling of trust and bind in their employers (the parents) only makes them MORE worthy of labor protections --not less. Great post. Very informative.