“The Help” Gets Its Due

New laws mean domestic workers finally have to be treated like other employees.

More states are passing laws to protect domestic workers like nannies

Photograph by Ryan McVay

Lizeth Palencia had worked for a family on the Upper East Side of Manhattan for almost two years when she was fired last February. The slight woman with a long braid hanging down her back and a Guatemalan accent says she had been hired to work from 9 to 6, five days a week, picking up after the family’s three children, making their beds, “finding their cellphone chargers if they couldn’t find them, whatever they needed.” She didn’t have to cook—the live-in housekeeper did that—and a driver took the children to school. Still, she was busy.

Palencia says her employer frequently asked her to stay late, though she refused to pay extra for those hours. After she left that job and a lawyer filed a complaint on her behalf with the New York State Department of Labor, Palencia claims, her former employer tried to have her fired from her new position.

Palencia, whose case is still pending, wouldn’t be the first domestic worker to be treated poorly by her employers. Such is too often the lot of people who toil within homes. For a long time, such mistreatment went unpunished.

But now the largely female, immigrant workforce seems on the verge of getting their due. In November of 2010, New York state’s Domestic Workers Bill of Rights—the first such law in the nation—went into effect, giving some 200,000 nannies, health aides, housekeepers, private cooks, and other at-home workers considerable power to address the poor conditions they often encounter in their unusual workplaces. Around the same time, the Urban Justice Center began holding a monthly legal clinic to help domestic workers file complaints. And the state Department of Labor started prioritizing their claims, according to lawyers who file them. (The New York State Department of Labor did not respond to inquiries.) The uptick of attention to domestic workers’ cases filed both before and after the new law went into effect has already resulted in dozens of domestic workers collecting awards of back pay and penalties ranging from $5,000 to $100,000.

The trend toward better treatment of domestic workers goes beyond New York. In December, the Obama administration proposed new federal regulations that would give home care workers employed through agencies new protections. In California, a bill of rights similar to New York’s is pending. Meanwhile, the National Domestic Workers Alliance, an advocacy group that now has 35 local affiliates around the country, is trying to ride—and perhaps push—the wave with a visibility campaign organized around the movie The Help.

In New York, the biggest changes involve overtime. Before the law, the highest overtime anyone was required to pay was one-and-a-half times minimum wage—or $10.88 per hour. Now, anyone directly employed within the home is entitled to pay at one-and-a-half times their hourly rate if they work more than 40 hours in a week. (For live-in domestic workers, overtime pay starts after 44 hours.)

“Overtime violations are rampant,” says Nicole Hallett, one of several attorneys who staff the Urban Justice Center’s free, monthly legal clinic. Hallett notes the problem is worst among live-in employees, who make up 30 percent of the domestic workforce. “I have yet to see a live-in worker who’s being paid overtime at the correct rate.”

The law brings other dignifying elements to a difficult line of work. Domestic employees must now have one day off every week or be paid overtime if they agree to work that day; a 20-minute break after working at least six hours in a row; and, after they’ve been employed for a year, three paid vacation days annually. Families that employ full-time workers are even responsible for paying unemployment and workers-compensation taxes.

And while the specific terms of employment used to be laid out in casual conversations, if at all, they now have to be put into writing. So people who hire nannies and other in-home workers not only have to be clear about their hourly rates; they have to document them along with their policies on sick leave, vacation, personal leave, and holidays. Employers are also obligated to write up weekly wage statements. If they don’t, they can face a fine of $50 per missed week. Through a separate law that went into effect in April, employers can also be fined $10,000 for each instance of retaliation against employees or former employees who file complaints.

In short, people who hire domestic workers now have to behave like regular employers. This has been a shocking change for some bosses, particularly those who become the subjects of complaints. The challenge of the new law is to nudge what has been an informal and intimate arrangement, with all of the good and bad things that entails, toward being a plain, old job. “People aren’t going to be able to treat their domestic worker as another family member who’s taking care of their kids anymore,” says Hallett. “It’s going to have to be a much clearer relationship.”

Though it’s hard to educate such a disparate workforce and many are still too fearful to take advantage of the law, the transition to a new domestic order is clearly under way. “Since the law passed, the number of inquiries we’ve gotten from workers has increased tenfold,” says Priscilla Gonzalez, the executive director of Domestic Workers United, an advocacy organization for New York’s nannies, housekeepers, and caregivers for the elderly. Of the complaints that proceed to the legal clinic, employers settle some 80 percent rather than going to court or before the state Department of Labor.

The new surge of effort to improve the lot of domestic workers comes as their ranks swell, a phenomenon experts attribute to both the growth of income inequality and the aging of the population. The proposed federal guidelines would apply to 2 million domestic workers employed by agencies throughout the country who, through a strange legal glitch, have been exempted from overtime and minimum wage protections.

Many owners of home care agencies oppose the changes, insisting that they would be forced to pass cost increases brought by the new regulations on to their clients. Similar arguments were used to successfully fight three past attempts to bring basic labor protections to these workers. Domestic workers and their advocates insist that any costs should be absorbed by the agencies. And, though the comment period on the federal regulations doesn’t end until March 12, this time, it looks like home care workers may win the day.*

Correction, Feb. 23, 2012: This piece originally misstated when the comment period for the federal regulations end. Because the period was recently extended, it will end March 12, not Feb. 27. (Return to the corrected sentence.)