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Domestic Workers United, “Domestic Workers and Collective Bargaining: A Proposal for Immediate Inclusion of Domestic Workers in the New York State Labor Relations Act”

November 10, 2010 Leave a comment Go to comments

“Domestic Workers and Collective Bargaining: A Proposal for Immediate Inclusion of Domestic Workers in the New York State Labor Relations Act”

Domestic Workers United, Oct. 2010 [PDF of full report]

 

 

I. The Backdrop: Moving Forward from the New York State Domestic Workers Bill of Rights

I kept waiting for the law [Domestic Workers Bill of Rights] that would benefit us to come into effect…to sit down with her [employer]. I was thinking because I had been working for almost three years that I could ask for my vacation or sick days. So I was waiting for the law. And because I had overheard so many conversations about the mother wanting to fire me, I thought that if I talk to them now, before the law, if I talk to them about such a thing, they would tell me to leave. –Domestic Worker #2

Since 2000, Domestic Workers United (DWU), a community-based organization of 4000 nannies, housekeepers, and elder caregivers, has organized for power and fair labor standards, building a movement for change.1 This summer, DWU’s efforts culminated in a historic victory: New York became the first state in the nation to pass a Domestic Workers Bill of Rights.2

In accordance with this new law, the New York State Department of Labor (DOL) is to prepare a report by November 1, 2010 on the feasibility of collective bargaining in the domestic-work industry.3 As domestic workers are currently excluded from collective-bargaining laws, DWU has begun to study what inclusion would mean and which models of collective bargaining would function best in this industry.

Based on DWU’s research and as an appropriate next step after the passage of the Bill of Rights, DWU recommends that the New York State Legislature amend Section 701(3) of the State Labor Relations Act (SLRA) by December 31, 2010 to eliminate the exclusion of domestic workers.4 The DOL and the Legislature should also ensure that the Public Employment Relations Board (PERB), the SLRA’s governing body, has the flexibility and authority necessary to determine bargaining structures for this sector.

This report documents the inconsistent, informal, and uncertain nature of domestic employment and concludes that domestic workers need the right to collectively bargain. Inclusion under the SLRA would represent more than a symbolic gesture: the law’s important protections would allow New York State’s domestic workforce to lead the way in exploring collective bargaining.

A. New Protections for Domestic Workers under the Bill of Rights

Once the Domestic Workers Bill of Rights goes into effect on November 29, 2010, New York State’s 200,000 domestic workers will be protected by new, basic labor standards, including a higher rate of overtime pay for live-in domestic workers and companions employed by private households, coverage of live-in companions under the New York State Minimum Wage Law, three paid days of rest after a year of employment, extension of temporary disability benefits to part-time employees, and inclusion of domestic workers under the New York State Human Rights Law.5
This new law represents a momentous advance for New York’s domestic workers—housecleaners, nannies, elder companions, and other home-based workers—who have historically been excluded from state and federal labor laws.6

B. Key Benefits that Domestic Workers Still Need and the Feasibility Study

While the Bill of Rights represents improved labor standards, as noted in Table 1, the final version of the law did not include five critical benefits: 1) paid sick days; 2) paid personal days; 3) paid vacation days; 4) advance notice of termination; and 5) severance pay. These benefits, by conferring job security and stability, would better enable domestic workers to stand up for their rights to fair wages and workplaces free of harassment.

Instead of passing these five benefits into law, the New York State Legislature commissioned the Department of Labor (DOL) to complete a study by November 1, 2010 on the feasibility of domestic workers’ collectively bargaining for these gains.15 According to the law, the DOL is tasked with examining: 1) whether an employee organization could be formed in accordance with the State Labor Relations Act; 2) how bargaining units could be formed; 3) whether there are issues unique to the domestic work context; and 4) alternative frameworks for collective organization.16

C. Supporting Collective Bargaining Rights for Domestic Workers

Domestic Workers United supports the right of all workers, including domestic workers, to organize and collectively bargain for rights and benefits. Throughout our nation’s history, unions and other forms of collective organization have been the primary vehicle for securing equitable, safe, and dignified working conditions, and this is particularly true in New York, the state with the highest union density in the country.17 The right to organize is considered fundamental under most domestic and international legal regimes, including the New York State Labor Relations Act (SLRA), which declares it the state’s public policy “to encourage the practice and procedure of collective bargaining, and to protect employees in the exercise of full freedom of association, self-organization and designation of representatives of their own choosing for the purposes of collective bargaining, or other mutual aid and protection, free from the interference, restraint or coercion of their employers.”18
Domestic workers are currently excluded from the SLRA.19 This exclusion can be remedied by deleting a small portion of SLRA Section 701(3) and ensuring that the SLRA’s governing body, the Public Employment Relations Board (PERB), has the necessary authority to oversee bargaining in this sector.20 In connection with the Domestic Workers Bill of Rights and the DOL’s current study, therefore, the DOL should recommend that the New York State Legislature use this opportunity to bring domestic workers under the SLRA.

What is the New York State Labor Relations Act (SLRA)?
Also called the “State Employment Relations Act,” this statute primarily applies to private-sector workers who are not covered by the National Labor Relations Act, such as those who work for very small companies or who have no or very few coworkers. The SLRA is the private-sector analog to New York State’s Taylor Act, which covers certain public-sector workers. Unfortunately, domestic workers and farm workers are not covered by the SLRA.
The SLRA protects workers’ right to collectively bargain with their employers and prohibits employers from engaging in “unfair labor practices,” such as interfering with unionization, blacklisting, or monitoring workers who organize together. It is governed by the Public Employment Relations Board (PERB), which, despite its name, handles private-sector matters as well. The PERB is responsible for mediating and arbitrating labor disputes and overseeing the union-recognition process, for example, through elections and card-checks.

 

II. Documented Experiences: Negotiating for Benefits
In order to better understand the nature of worker-employer relations in this industry, in the absence of collective bargaining, DWU has documented the employment conditions of domestic workers in New York City, specifically focusing on access to benefits and the ability of workers to negotiate for benefits. The results of this research show that domestic workers—due to factors including physical isolation, intimate relation to employers, vulnerability in the workplace, and lack of legal standards—experience a wide variation in wages, hours, job duties, and benefits, and are dependent on the decisions made in individual households. Furthermore, the study reveals that many domestic workers are without any paid benefits and consequently lack the job security necessary to negotiate with their employers. The Bill of Rights, once in effect, will establish minimum labor standards, but domestic workers will continue to face ill-defined, precarious terms of employment and little access to key benefits. It is, in other words, precisely the kind of industry that would benefit from collective organizing—and one that requires a particularly innovative structure for doing so.

A. DWU ’s Research Methodology
Between August and October 2010, DWU and its research partner, the Community Development Project of the Urban Justice Center, conducted 505 surveys with a wide range of domestic workers employed in communities across New York City (see Table 2), as well as 10 in-depth interviews with workers and employers.21 This study builds on DWU’s 2006 research, which documented the harsh working conditions endured by domestic workers.22 The new research provides additional data about benefits, employer-employee negotiations, and employment agreements.

B. General Findings about Hours and Wages and Provision of Benefits

“They [domestic workers] are subject to an employer’s whim and desires more than in most jobs where the job may be more clearly specified. There is no one else around, in a sense. There is potentially more power in an employer of a domestic worker. So it is really important for there to be safeguards for domestic workers; ways to define the job, what we are obliged to do and what we are not obliged to do.” –Employer #3

The results of the survey and interviews show high variation in the benefits received and in workers’ experiences negotiating employment terms. Surveyed domestic workers expressed considerable uncertainty about the types of benefits to which they were entitled. Furthermore, comparative analysis of wage, hour, and benefit data reveals that these workers earn less while working longer hours than those in comparable industries in New York or in New York City’s workforce generally, and are less likely than other workers to receive certain benefits, such as paid sick leave.23 The following findings suggest that collective bargaining is needed to secure more robust, consistent standards for domestic workers and that the industry’s complexities demand creative structures for collective bargaining.

1. Domestic Workers Work More Hours for Lower Wages than Other Workers.

Hourly wages and weekly schedules vary greatly for domestic workers. In the absence of industry standards, domestic workers are left to negotiate wages on an individualized basis. Consequently, many workers take home less but work longer hours than their counterparts in other industries.

  • Many workers do not earn enough to meet their basic needs. Given that most domestic workers are raising their own families (survey respondents had an average of 2.2 children), their wages do not bring them up to the “Self-Sufficiency Standard” of $29.91 per hour for 40 hours of work. 24 Indeed, the average hourly wage was $12.66 per hour. Moreover, 17% of respondents were found to be living below the federal poverty line of $8.80 per hour, 93% below the “low wage” level, and 96% below the Self Sufficiency Standard for a three-person household.
  • The industry is extremely hours-intensive. The average number of hours per week was 44.4, with 73% of respondents employed between 40 and 70 hours per week. Domestic workers also work more hours than other workers in comparable industries.

2. Domestic Workers Lack Paid Sick and Personal Days and are Unable to Choose Vacation Days.

More than half of the domestic workers surveyed do not receive any paid sick days; almost three-quarters do not receive paid personal days; and almost a third do not receive any paid vacation (see Table 6). Furthermore, as shown in Table 7, many workers are uncertain about whether they are entitled to any kind of paid day off, with 47% reporting that they do not know if they receive sick days, 56% not knowing about personal days, and 22% not knowing about vacation days. As compared to other workers, domestic workers are less likely to have paid sick leave.27 And with respect to vacation, more than two-thirds of workers (68%) surveyed are unable to choose when to take vacation, as it is determined by their employers’ schedules; others are forced to take unpaid leave while their employers are on vacation, depriving them of much-needed household income.

  • 57% of domestic workers surveyed do not receive any paid sick days, as compared to 48% of all working New Yorkers.28
  • 71% of domestic workers surveyed do not receive any paid personal days. •
  • 29% of domestic workers surveyed do not receive any paid vacation days.•
  • 68% of those with vacation days must take their vacation based on their employer’s schedule.

3. Domestic Workers Lack Notice of Termination and Severance Pay.

I would certainly feel a great deal of responsibility to her, but I don’t know what would be an appropriate amount of notice or severance. I never thought of that actually. I don’t even know what some of the legal requirements. It would be easier if there some guidance or rules about what I should do. Then it would be understood on both sides. As an employee you know your rights, and as an employer you know your obligations. – Employer #3

The survey and interview data convey the insecurity and instability of domestic employment. Not only is there a lack of certainty at the inception of the employer-employee relationship, but there are no standards governing its termination. With no guarantee of notice of termination or severance pay, domestic workers are vulnerable to being unemployed and entirely without income on hours’ notice. For live-in domestic workers, this can result in homelessness. Furthermore, domestic workers are less likely to receive severance pay than those in the general workforce. Nationwide, six out of ten companies have a written severance policy, 29 and state and federal laws protect many workers in the context of large company closures.30 The precarious nature of the low-wage domestic-work industry makes it difficult for workers to negotiate better terms and conditions. When a worker’s predominant concern is job retention, she is unlikely to feel confident enough to assert her rights or bargain with her employer.

  • 49% of respondents were not given any advance notice if they were fired or let go.
  • 70% of respondents were not given any severance pay if they were fired or let go.

C. Negotiating for Benefits: Isolation, Informality, and Uncertainty

I don’t have the same level of intimacy with other people that have worked for me. Having a domestic worker lends itself to an intimate relationship in ways that other jobs don’t. If you have someone working in your home, taking care of your children, it is incredibly intimate. – Employer #1

Domestic workers face unique challenges in their workplaces. Operating inside their employers’ homes, they experience the combination of isolation, an intimate employment relationship, historical exclusion from labor laws, and job insecurity, undermining their ability to bargain for better conditions on an individual basis.31 The individual domestic worker generally lacks coworkers and must therefore bargain alone with her employer for reasonable wages, hours, job duties, and benefits. In fact, the majority of those surveyed reported having no coworkers, and the vast majority of those who did have coworkers reported only occasional contact with one other domestic worker.

Domestic workers attempting to negotiate with their employers must do so in the employer’s home, concerning matters that affect the employer’s loved ones, property, and intimate household dynamics. This is a weighty undertaking for an isolated worker. As compared to other workplaces, the home is a charged, sensitive space often lacking the emotional distance necessary for negotiation to take place. Unsurprisingly, then, DWU’s survey indicates that many workers either do not discuss the terms of employment with their employers or, when discussions are had, come away with an unclear understanding of what is agreed upon. This provides further evidence of the need for clear standards and the right to collectively bargain.

1. Domestic Workers Lack Agreements for Notice of Termination and Severance Pay.

No, we didn’t have a discussion [about benefits]. She [the domestic worker] didn’t give any input. She has so many other issues going on, and there is a lot of fear. She doesn’t want to lose the job, and there is a lot of anxiety there. – Employer #2

Table 8 shows that a high percentage of respondents do not have an agreement with their employers about critical benefits, such as notice of termination (73%) and severance pay (84%). Even for those workers who have made agreements with their employers, they feel a high level of uncertainty as to whether those agreements have been kept or broken. In fact, 63% of those with an agreement about severance and 40% of those with an agreement about notice of termination are not sure if the agreement was kept or broken.

2. Domestic Workers Have Uncertainty about Sick, Vacation, and Personal Day Agreements.

There was never a conversation. It was just, you work hourly, so you just do whatever we ask while you are here. – Domestic Worker #1

Table 9 indicates that even if domestic workers are given sick days, vacation days, or personal days, they are not clear about the terms of those benefits. Specifically, 79% (personal days), 68% (sick days), and 56% (vacation days) of these respondents are “not sure” what happens in the event they do not take these days.

3. Domestic Workers Experience Discomfort in Negotiating for Benefits.

Table 10 indicates domestic workers’ varying levels of comfort in talking to their employers about benefits. Due to the intimate, informal, and isolated nature of their workplace, many domestic workers do not feel comfortable discussing benefits with their employers. Survey respondents report feeling particularly uncomfortable discussing notice of termination (52%) and severance (55%).

4. Domestic Workers are Isolated in the Workplace.

Table 11 shows that domestic workers are far more isolated in the workplace than workers in other industries. The average respondent works alone, and of those surveyed who have coworkers, 82% report having only one other coworker with whom they seldom interact.

D. Summary of Data

Overall, the data portrays a complex industry characterized by diverse, nonstandard employment arrangements and inconsistent labor standards. Domestic workers and their employers require guidance in order to develop agreements and standardize terms of employment. The wide variation in wages, hours, benefits, and their corresponding negotiability demonstrates the need for collective organization, especially in light of the isolation and uneven power dynamics inherent to this industry. A creative structure must be established by which domestic workers can come together to engage in collective bargaining with their employers. As set out below, DWU recommends that domestic workers be protected by collective-bargaining laws in New York.

 

III. A “Collective Standards” Approach:

Four Building Blocks of Collective Bargaining

All workers, including domestic workers, should enjoy equal rights and fair standards, including the right to collectively bargain. Specifically, DWU believes that the DOL should recommend amendment of the SLRA to include domestic workers and allow the PERB to determine the nature and structure of collective bargaining for domestic workers.

By November 1, 2010, the DOL must submit a study to the New York State Legislature that contemplates: 1) whether a domestic worker employee organization could be formed in accordance with the State Labor Relations Act; 2) how bargaining units could be formed; 3) whether there are issues unique to the domestic work context; and 4) alternative frameworks for collective organization.33

The DOL should explore these issues and immediately endorse amendments to the SLRA that support collective bargaining for domestic workers. With this framework in place, DWU would have the legally-protected right to form a worker entity pursuant to the SLRA and begin bargaining initiatives. From DWU’s perspective, collective bargaining should be pursued in the context of the four-part “collective standards” approach outlined below.

Building Block 1: Include Domestic Workers under the SLRA to Enable Collective Bargaining in this Industry.

All workers in New York should enjoy the right to organize and be covered by the SLRA, which currently excludes domestic workers.34 The right of workers to collectively bargain is among the core labor standards recognized under domestic and international laws.35 History has shown that unions are often central to the advancement of workers and the realization of their rights.36

In addition to the symbolic significance of covering domestic workers under the SLRA, the law’s protection of workers engaged in collective bargaining will be necessary to transform the culture and standards of this industry.37 Domestic workers must be protected against retaliation by their employers for participating in campaigns for fair working conditions.

Collective bargaining will occur incrementally in the domestic-work context, and it is likely that small-scale experimentation and organizing will be the point of departure. The PERB should oversee the process by which domestic workers conclude agreements with their employers and designate which entities and bargaining units are appropriate, whether on the basis of geography, type of domestic labor, or other criteria.

Building Block 2: Continue Pursuing Legislative and Regulatory Reforms as Needed.

Even in sectors that have long benefited from collective bargaining, unions have not relied solely on collective bargaining: they have simultaneously pushed for laws and regulations that would improve conditions for all workers and fortify enforcement mechanisms. Therefore, statutory and regulatory reforms should operate in tandem with collective bargaining to raise the standards in the domestic-work industry.

As documented in the foregoing research, five benefits are critical for domestic workers to achieve stability in their employment: 1) paid sick days; 2) paid personal days; 3) paid vacation days; 4) advance notice of termination; and 5) severance pay. Such benefits could be negotiated through collective bargaining, but legislation or regulatory promulgation of certain benefits may be necessary, in part to create the conditions for negotiation. For example, notice of termination and severance promote security in the domestic workforce, preventing employers from treating workers as disposable and thereby supporting bargaining efforts.

Building Block 3: Conduct Community Education and Enforce Existing Ri ghts through Community PaPartnerships.

Public awareness and enforcement of existing laws are required to realize domestic workers’ rights and to lay the foundation for collective bargaining. Toward this end, a collaborative model involving the DOL, DWU members, and employers would draw effectively on existing resources, capacity, and industry expertise.

In addition, a DWU-DOL enforcement partnership, similar to the New York Wage Watch program, would encourage DWU members to monitor compliance in the communities where they live and work.38 Elected officials in the neighborhoods of DWU members could also contribute to this model by establishing “domestic worker justice zones.”

New York Wage Watch
Modeled after Neighborhood Watch programs, this NYS DOL initiative draws on the local expertise and connection of community-based organizations/workers’ centers to monitor “wage theft” (non-payment of minimum wages, overtime, tips, etc.) in their own neighborhoods.

Domestic Worker Justice Zones
In collaboration with NYS Senator Eric Adams (D-20th Dist.) and other supporters, DWU plans to establish localized initiatives to ensure employer and employee education and the enforcement
of employees’ rights.

Building Block 4: Continue to Organize Domestic Workers.

Throughout its 10-year history, DWU has prioritized organizing for fair, not minimum, labor standards. Currently, DWU has a membership of 4000 workers in the New York City area, and with the support of community organizations, labor unions, and government institutions, DWU hopes to expand its reach, building power as a precondition of collective bargaining.

 

IV. Domestic Workers United’s Position on the Feasibility Study

Based on extensive research and organizing experience, DWU believes collective bargaining is feasible for domestic workers. In the course of studying the four topics of the feasibility study outlined in the Domestic Workers Bill of Rights—1) forming an employee organization pursuant to the State Labor Relations Act (SLRA), 2) forming bargaining units, 3) issues unique to the domestic-work context, and 4) alternative frameworks for collective organization—the DOL should affirm this fundamental right to organize and recommend that the New York State Legislature include this industry in the SLRA. Furthermore, the Public Employment Relations Board should oversee implementation of bargaining models and exercise its authority to engage in rulemaking or otherwise establish terms and structures for the domestic workforce as needed.

A. Forming an Employee Organization under the State Labor Relations Act

Collective bargaining normally takes place between a group of workers, typically represented by a union, and a corresponding employer entity. This basic premise is challenging to conceptualize in the domestic worker context, since most workers deal with their employers on a one-to-one basis. Nevertheless, there are promising models to draw upon.

The organizing successes of DWU prove that domestic workers, overcoming their isolation, could form a cross-workplace employee organization pursuant to the SLRA. More difficult is the question of what form an employer entity would take, as household employers are not generally organized. This issue is explored further in the discussion of bargaining units below.

B. Forming Bargaining Units

In the domestic-work context, bargaining units could be organized according to many different criteria, such as geography or work tasks. Standards in this sector tend to be transmitted informally and on the basis of neighborhood and type of domestic worker, such as housecleaner, nanny, or elder companion.39

The SLRA gives the PERB great flexibility in designating bargaining units. In Section 705(2) of the law, the PERB is empowered to decide “the unit appropriate for the purposes of collective bargaining,” which may include “the employer unit, multiple employer unit, craft unit, plant unit, or any other unit.”40

For domestic workers, straightforward designation of the “employer unit” as the bargaining unit would mean preserving the one-to-one relation between the domestic worker and her employer. While this seems somewhat counter to the idea of “collective” bargaining, it is both appropriate and with precedent under the SLRA.41

Another option for domestic workers may be the designation of “multiple employer units.” This could initially involve localized, small-scale attempts at collective bargaining, with employees organized, for example, by geography and/or job duties and employers organized, for example, through neighborhood parents’ associations or residential groups. This model is contemplated by the SLRA and well-practiced in many contexts, including the building trades.42

C. Issues Unique to the Domestic Work Context

The foregoing survey and interview data in Section II document the peculiar constellation of challenges that domestic workers face in their workplaces: namely, isolation, uneven power dynamics, emotional linkages, and inconsistent and informal terms of employment. As concerns collective bargaining, it is also significant that workers in this industry do not typically relate to a common employer or other potential entity with which to negotiate.

In addition, domestic workers’ diversity of background and immigration histories must be considered. Among those domestic workers recently surveyed by DWU, 87% were immigrant women of color, a population particularly vulnerable to exploitation by unscrupulous employers. Enforcement here is crucial: strong worker protections are needed to ensure that domestic workers can effectively exercise their leverage in collectively bargaining for rights and benefits.

D. Alternative Frameworks for Collective Organization
The success of DWU since its establishment in 2000 speaks to the efficacy of innovative forms of labor organizing. Through this model workers’ center, an important contemporary framework for collective organization, domestic workers have fought for recognition and legislative changes. Nevertheless, DWU’s members have not benefited from the protections of collective-bargaining laws, nor has the structure existed for formal employee-employer negotiations to occur in this industry.

 

V. Conclusion: A Call to Action

On the heels of the Domestic Workers Bill of Rights victory, Domestic Workers United (DWU) is prepared to build upon its historic organizing success. To this end, it recommends that the New York State Department of Labor endorse domestic workers’ immediate inclusion under the State Labor Relations Act (SLRA). All workers, including those as isolated and dispersed as domestic workers, should have the right to bargain collectively under the law and press for equitable, industry-wide standards.

A simple amendment to Section 701(3) of the SLRA, which could be accomplished before 2011, would end the unjust exclusion of domestic workers from New York’s collective-bargaining law and enable them to seek creative forms of organization. This would open a new, historic chapter in the labor movement at large and create the opportunity for domestic workers to collectively bargain.

Including domestic workers in the SLRA will help facilitate the enforcement of existing laws, including the newly enacted Bill of Rights. The domestic workforce is at the core of our economy, yet it remains in the shadows, beyond the realm of government enforcement and advocacy. The invisibility of domestic workers undermines labor standards and ultimately diminishes labor rights for all workers. Enactment and enforcement of the Domestic Workers Bill of Rights, inclusion in the SLRA, and continued expansion of labor rights and benefits will help end employer abuses in this industry. By supporting equality and expanded rights for one of New York’s most vulnerable workforces, we strengthen collective bargaining, workers’ rights, and human rights for all. This is an important step in creating a sustainable, 21st-century economy that works for everyone.

Global Dimensions
We are witnessing, despite decades of legal exclusion and invisibility, a surge in domestic workers’ organizing, activism, and visibility. Building on the work of DWU and similar organizations in three other cities, the National Domestic Workers Alliance was established at the U.S. Social Forum in 2007 and already boasts some 33 affiliates in 11 states and the District of Columbia.33 California groups affiliated through the California Household Worker Rights Coalition are currently organizing to pass the California Domestic Worker Bill of Rights.34
Outside the United States, domestic workers are mobilizing in countries as diverse as South Africa, India, Italy, and France.35 The International Labour Organization has taken notice and proposed the “Decent work for domestic workers” Convention and Recommendation, which would establish formal recognition of the workforce and minimum standards at the international level.36 All of these developments will inform collective bargaining among domestic workers in New York.

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