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THE CONSTITUTIONAL PARAMETERS OF NEW YORK
STATE‘S DOMESTIC WORKERS BILL OF RIGHTS: BALANCING
THE RIGHTS OF WORKERS AND EMPLOYERS
Donna E. Young*
I. INTRODUCTION
New York State‘s new Domestic Workers Bill of Rights1 is a
remarkable and welcome departure from the ordinary governmental
lack of enthusiasm for protecting workers who work in other
people‘s homes. For the first time in any U.S. jurisdiction, domestic
workers are given protections akin to those commonly found in nonunionized workplaces.2 The statute was enacted in July 2010 after
several years of failed attempts at legislative reform.3 The law
amends New York State‘s Labor Law, Executive Law, and Workers‘
Compensation Law.4 In enacting the new law, the New York State
Assembly stated:
The labor of domestic workers is central to the ongoing
prosperity that the state enjoys, and yet, despite the value of
their work, domestic workers do not receive the same
protection of many state laws as do workers in other
industries.
Domestic workers often labor under harsh
conditions, work long hours for low wages without benefits or
* Professor of Law, Albany Law School; B.Sc., University of Toronto; LL.B., Osgoode Hall
Law School of York University; LL.M., Columbia University School of Law. I would like to
thank Albany Law School students Jessie Cardinale, for inviting me to participate in the
State Constitutional Commentary symposium, and Elise Powers, for her invaluable research
assistance.
1 Domestic Workers Bill of Rights, 2010 N.Y. Sess. Laws 1313 (McKinney) (codified at N.Y.
EXEC. LAW §§ 292, 296-b; N.Y. LAB. LAW §§ 2, 160, 161, 170, 651; N.Y. WORKERS‘ COMP. §
201).
2 See Nicholas Confessore, Domestic Workers‟ Rights Bill Passes, N.Y. TIMES BLOG, July 1,
2010, http://cityroom.blogs.nytimes.com/2010/07/01/domestic-workers-rights-bill-passes/.
3 Between 2004 and 2008, similar legislation had failed to pass through the Assembly
Labor Committee, the Senate Labor Committee, and the Assembly Codes Committee. See S.
S2311A, 232d Sess. (N.Y. July 6, 2009), 2009 N.Y. S.B. 2311 (NS) (Westlaw) (summarizing
the legislative history of similar proposals).
4 See generally Domestic Workers Bill of Rights (amending N.Y. EXEC. LAW §§ 292, 296-b;
N.Y. LAB. LAW §§ 2, 160, 161, 170, 651; N.Y. WORKERS‘ COMP. §201).
1767
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job security, are isolated in their workplaces, and are
endangered by sexual harassment and assault, as well as
verbal, emotional and psychological abuse. Moreover, many
domestic workers in the state of New York are women of color
who, because of race and sex discrimination, are particularly
vulnerable to unfair labor practices.5
In addition, the Assembly found that
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 New York to ensure that the rights of domestic
workers are respected, protected, and enforced.6
Prior to the enactment of New York‘s law, domestic workers7 were
afforded virtually no protections that were commonly enjoyed by
other workers, either through law or custom.8 In New York, they
were not, and in most other jurisdictions still are not, entitled to
vacation leave, medical leave, notice of termination, or the right to
organize and bargain collectively.9 They were not covered by
antidiscrimination laws,10 nor were they protected against wrongful
discharge.11 The matrix of laws that do cover domestic workers are
found in different configurations throughout the country, contain
complicated exceptions, and are difficult to enforce.12 For example,
none of the most important federal statutes regulating the
Id. at 1341.
Id.
7 The new Act defines a domestic worker as ―a person employed in a home or residence for
the purpose of caring for a child, serving as a companion to a sick, convalescing, or elderly
person, housekeeping, or for any other domestic service purpose.‖ N.Y. LAB. LAW § 2
(McKinney 2009 & Supp. 2011).
8 By ―custom,‖ I refer to the various benefits commonly found in employment settings that
are not mandated by legislation, but are nonetheless considered standard (i.e., vacation pay,
medical, dental, or life insurance benefits, flexible work schedules, retirement benefits, and
severance pay).
9 See, e.g., Elizabeth J. Kennedy, The Invisible Corner: Expanding Workplace Rights for
Female Day Laborers, 31 BERKELEY J. EMP. & LAB. L. 126, 142–43 (2010).
10 The New York State Human Rights Law only applies to employers with more than three
employees. N.Y. EXEC. LAW § 292 (McKinney 2010 & Supp. 2011). Title VII applies to
employers with fifteen or more employees. 42 U.S.C. § 2000e (2006). Therefore, it is
extremely unlikely that a domestic worker working in someone‘s home would be covered.
11 See 42 U.S.C. § 2000e-2(a) (2006) (discussing when an ―employer‖ cannot terminate an
employee).
12 See generally Donna E. Young, Working Across Borders: Global Restructuring and
Women‟s Work, 2001 UTAH L. REV. 1, 26–36 (2001) (discussing the state and federal laws
covering domestic workers).
5
6
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workplace provide full coverage for domestic workers.13 The Fair
Labor Standards Act (―FLSA‖) that regulates minimum wage and
overtime pay14 does not cover live-in caregivers.15 More disturbing
are the explicit and implicit exclusions of domestic workers found in
the Occupational Safety and Health Act (―OSHA‖),16 the act that
protects workers against occupational dangers; the National Labor
Relations Act (―NLRA‖),17 the act that guarantees the right to
organize and collectively bargain; and Title VII of the Civil Rights
Act of 196418 that protects workers against various forms of
discrimination. New York represents the first successful campaign
by domestic worker advocates to win protection through state
legislation.19
Not surprisingly, the new law was met with overwhelming
approval of domestic worker groups and labor activists. Yet, there
was virtually no organized opposition from employers.20 However,
employer concerns may arise when it comes time to enforce the
law.21 Employers might object to governmental intrusion into the
See id. at 2728.
See 29 U.S.C. §§ 206(f), 207(1) (2006) (providing minimum wage and maximum hours
protection for domestic service employees). See also Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158 (2007) (confirming FLSA‘s companionship exemption and holding that service
rendered in an individual‘s home by a person employed by a social service agency is exempt).
15 See 29 U.S.C. § 213(a)(15) (2006) (excluding babysitter employed on a casual basis or
companions for the aged or infirm).
16 29 U.S.C. § 652(6) (2006) (limiting the definition of ―employee‖ to those employed in a
business affecting commerce).
17 29 U.S.C. § 152(3) (2006) (―The term ‗employee‘ . . . shall not include any individual
employed . . . in the domestic service of any family or person at his home . . . .‖).
18 42 U.S.C. § 2000e(b), (f) (2006) (defining ―employee‖ as an individual employed in an
industry affecting commerce).
19 See Confessore, supra note 2.
20 See Tim Judson, Workplace Standards for Domestic Workers: Breakthrough NY
Legislation
Approved,
PROGRESSIVE
STATES
NETWORK
(June
10,
2010),
http://www.progressivestates.org/node/25207; see also Ai-jen Poo, Domestic Workers Bill of
Rights: A Feminist Approach for a New Economy, SCHOLAR & FEMINIST ONLINE (Fall 2009),
http://www.barnard.edu/sfonline/work/print_poo.htm; Daniel Massey, Paid Sick Days,
Vacations, Proposed for Maids, Nannies, CRAIN‘S N.Y. BUS. (May 25, 2010),
http://www.crainsnewyork.com/article/20100525/SMALLBIZ/100529906.
21 At this early stage, there has been some concern that the requirements of the bill will
place too much unfair strain on employers. According to Joseph P. Paranac, Jr., a Newark,
New Jersey based attorney, the fourteen day termination notice could encourage domestic
workers to steal their employers‘ property in a way that would make their thefts difficult to
prove, being fired without the requisite notice as a result, but then being able to receive back
pay and benefits when the employer is unable to prove his or her case. Andy Lagomarsino,
„Domestic Workers Bill of Rights‟ in New York Could Have National Ripple Effect if it Becomes
Law, NEWJERSEYNEWSROOM.COM (June 14, 2010), http://www.newjerseynewsroom.com/
economy/domestic-workers-bill-of-rights-in-new-york-could-have-national-ripple-effect-if-itbecomes-law. Paranac also alleged that, if domestic workers are eventually given the right to
13
14
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family home, notwithstanding general approval of some degree of
regulation of the ―typical‖ workplace. Questions of privacy and
freedom of expression are at least implicated by the new law. One
might ask how the law will be enforced without some intrusion in
the operation of someone‘s private household. These questions arise
in a setting unlike any other employment setting—within the
employer‘s private home. I argue that despite this unique setting,
the new law, though touching upon certain constitutional rights of
employers, does not run afoul of the Constitution any more than
does regulation aimed at more traditional workplaces.
Constitutional questions that arise in the employment setting
routinely involve an assessment of the rights and obligations of the
parties and of the public. Although balancing the interests between
an employer and employee is common in the constitutional
jurisprudence of the workplace,22 some might argue that because
employment takes place within someone‘s home, the constitutional
analysis ought to reflect, in some way, the exceptional nature and
setting of the domestic employment relationship. That is, the
government should exercise more caution in intervening in a
dispute between employer and employee when that dispute takes
place in someone‘s private home. However, I argue that there is no
reason why such tension arising from the enforcement of the new
act ought to be balanced in a way that is not clearly in line with the
way the regulation of employment operates outside the home.
Therefore, employers‘ rights to privacy and free speech within their
own home ought to yield to the protected interests of domestic
workers to the same extent as would be expected in a more typical
work place.
Part I provides a brief overview of the manner in which U.S. law
has evolved over time to deal with the woman‘s role in the home and
in the workplace. Through cases upholding legislative initiatives
organize, the result would be to drastically raise the cost of labor in a critical industry during
an economic downturn, analogizing this to what the Service Employees International Union
(―SEIU‖) has enabled apartment servicemen in New York to do in regard to their wages and
benefits. Id. Generally speaking, the concern is that employers of domestic workers will be
expected to turn into trained human resources personnel overnight, while the reality is that
many will face legal consequences before they‘ve had the opportunity to become wellinformed. Id.
22 See Pickering v. Bd. of Educ., 391 U.S. 563 (1968); Nat‘l Treasury Employees Union v.
Von Raab, 489 U.S. 656 (1989); Engquist v. Or. Dep‘t of Agric., 553 U.S. 591 (2008) (holding
that a claim of equal protection was not applicable as a ―class-in-one‖ within public employee
context).
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delineating and limiting the parameters in which women were
entitled to work outside the home, courts contributed to the popular
conception that women‘s roles as wives and mothers were primary,
and that these roles should be preserved at the cost of women‘s
equal access to employment. The consequences of these early legal
pronouncements reverberate today in the regulation of work done
within the home. Domestic workers have to struggle not only
against the idea that the work they do is not really work (i.e., that
it‘s just part of women‘s natural proclivities), and that its value in
the labor market is limited, but also against deeply imbedded legal
doctrine that treats the family home as a near-sacred forum into
which there should be no governmental intrusion. Against this
legal context then, New York‘s law can be seen as a significant
departure from the ways in which state governments have treated
domestic work.
Part II outlines the parameters of New York‘s new Domestic
Workers Bill of Rights. Though the new law goes a long way in
addressing some of the most significant barriers to workplace
protections, questions remain as to how vigorously the law will be
enforced. Part III examines some constitutional questions that
might arise with regard to the law‘s enforcement. Arguments might
be made that in enforcing the new law, the government will unduly
interfere with employers‘ privacy and free speech rights. However,
I conclude that once someone has chosen to employ a household
worker, then he/she has no special constitutional protections that
are unavailable to employers in more traditional workplace settings.
Though there are general limitations to governmental action, there
are no constitutional barriers to full enforcement of the law simply
by virtue of the household setting within which the law operates.
II. THE MAKING OF HOUSEWORK AS WOMEN‘S WORK
Housework is not the first topic that comes to mind when one
thinks about constitutional law. In fact, housework is not a topic
that one sees addressed in many legal forums at all. But it is
clearly a topic which, even if not foremost in one‘s mind, has an
impact on most of our lives. Who does it, when, how, for how long,
and under what circumstances? The answers vary, but the pattern
is clear. Whether housework is done by a paid employee or by a
member of the household, work done within the home is
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overwhelmingly done by women,23 and commonly considered a
matter of private concern.
Feminist legal scholars have brought to light the significance and
consequences of a regulatory scheme that relegates certain
activities to either the private or public sphere.24 Housework is one
such activity that has at some point been unambiguously relegated
as a private matter. However, it is also a topic that involves an
evaluation of the roles of men and women in both the home and in
the workplace, and as such it has gained more attention among
legal scholars interested in both family and employment law. This
heightened attention to the roles of men and women vis-à-vis
domestic work has led to a strong critique of the justifications for
relegating men and women to ―separate spheres,‖ and has
contributed to an understanding that not everything that happens
within the home is out of bounds of direct legal regulation.25
Nonetheless, attitudes about the roles of men and women within the
private home have played a role in the manner in which legislators
and courts have dealt with regulation of work outside the home. In
the Supreme Court‘s 1872 decision holding that states were not
23 American Time Use Survey, U.S. BUREAU OF LAB. STATS. (June 22, 2010),
http://www.bls.gov/news.release/atus.nr0.htm (stating that twenty percent of men do
housework versus fifty-one percent of women); 20 Leading Occupations of Employed Women:
2010 Annual Averages, U.S. DEP‘T OF LAB., http://www.dol.gov/wb/factsheets/20lead2010.htm
(last visited Sept. 9, 2011) (stating that eighty-nine percent of all maids and housekeepers are
women); see Katharine Silbaugh, Commodification and Women‟s Household Labor, 9 YALE J.
L. & FEMINISM 81, 100–04 (1997) (showing that women do more work within the home than
men, even in two-wage families); see also Donna E. Young, Working Across Borders: Global
Restructuring and Women‟s Work, 2001 UTAH L. REV. 1, 21 (2001) (the law‘s treatment of
women in the workforce has been influenced by the idea that domestic work is women‘s
work).
24 See Martha A. Fineman, Cracking the Foundational Myths: Independence, Autonomy
and Self-Sufficiency, 8 AM. U. J. GENDER SOC. POL‘Y & L. 13 (2000) (discussing the ―assumed
family‖ sphere and the dependency of the public sphere on caretakers and families); see, e.g.,
Frances E. Olsen, International Law: Feminist Critiques of the Public/Private Distinction, 25
STUD. TRANSNAT‘L LEGAL POL‘Y 157 (1993); see also Ruth Gavison, Feminism and the
Private/Public Distinction, 45 STAN L. REV. 1 (1992).
25 See, e.g., JEAN BETHKE ELSHTAIN, PUBLIC MAN, PRIVATE WOMAN: WOMEN IN SOCIAL AND
POLITICAL THOUGHT (1981) (discussing the historical dichotomy between the public and
private spheres throughout Western history); MARTHA ALBERTSON FINEMAN, THE NEUTERED
MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) (discussing
the role of privacy in ―traditional‖ and non-traditional families in society); CATHARINE A.
MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987) (discussing the
role of feminism in bringing about societal changes to improve the perception and status of
women); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal
Reform, 96 HARV. L. REV. 1497 (1983) (discussing reforms to end ―the subordination of women
to men‖ and the assumption on which gender differences were based).
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required to admit women to the practice of law,26 Justice Bradley, in
his concurring opinion in Bradwell v. Illinois, stated,
the civil law, as well as nature herself, has always
recognized a wide difference in the respective spheres and
destinies of man and woman. Man is, or should be, woman‘s
protector and defender. The natural and proper timidity and
delicacy which belongs to the female sex evidently unfits it
for many of the occupations of civil life. The constitution of
the family organization, which is founded in the divine
ordinance, as well as in the nature of things, indicates the
domestic sphere as that which properly belongs to the
domain and functions of womanhood. The harmony, not to
say identity, of interests and views which belong, or should
belong, to the family institution is repugnant to the idea of a
woman adopting a distinct and independent career from that
of her husband.27
These sentiments, that women were more naturally suited to
primacy in household matters, were found in later decisions
upholding legislation that provided special treatment for female
workers outside the home.28 In fact, the home and activities within
it have greatly influenced the ways in which courts and legislatures
have evaluated legislation designed to protect male and female
workers in the workplace. Women‘s housework and other caregiving activities performed within the home have acted as the
backdrop for protective employment laws for much of American
labor history. For example, in Muller v. Oregon, the Supreme Court
upheld an Oregon law limiting the number of hours women could
work in a laundry or factory facility.29 Despite its ruling only three
years earlier striking down similar legislation in New York State,30
the Court ruled that women‘s unique status as wife and mother
required legislation in order to protect not only women‘s, but
Bradwell v. Illinois, 83 U.S. 130, 133 (1872).
Id. at 141 (Bradley, J., concurring).
28 See Muller v. Oregon, 208 U.S. 412, 42023 (1908).
29 See id. at 41617, 423.
30 Id. at 41819 (holding that a law restricting the number of hours a man could work in a
bakery to sixty hours per week and ten hours per day ―was not as to men a legitimate exercise
of the police power of the State, but an unreasonable, unnecessary, and arbitrary interference
with the right and liberty of the individual to contract in relation to his labor, and as such
was in conflict with, and void under, the Federal Constitution‖ (citing Lochner v. New York,
198 U.S. 45 (1905)).
26
27
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society‘s interests as well.31 In a much quoted passage, the Court
states
that woman‘s physical structure and the performance of
maternal functions place her at a disadvantage in the
struggle for subsistence is obvious. This is especially true
when the burdens of motherhood are upon her. Even when
they are not, by abundant testimony of the medical
fraternity continuance for a long time on her feet at work,
repeating this from day to day, tends to injurious effects
upon the body, and as healthy mothers are essential to
vigorous offspring, the physical well-being of woman becomes
an object of public interest and care in order to preserve the
strength and vigor of the race. Still again, history discloses
the fact that woman has always been dependent upon man.
He established his control at the outset by superior physical
strength, and this control in various forms, with diminishing
intensity, has continued to the present. As minors, thought
not to the same extent, she has been looked upon in the
courts as needing especial care that her rights may be
preserved. Education was long denied her, and while now
the doors of the school room are opened and her
opportunities for acquiring knowledge are great, yet even
with that and the consequent increase of capacity for
business affairs it is still true that in the struggle for
subsistence she is not an equal competitor with her brother.
Though limitations upon personal and contractual rights
may be removed by legislation, there is that in her
disposition and habits of life which will operate against a full
assertion of those rights. She will still be where some
legislation to protect her seems necessary to secure a real
equality of right.32
The decision reflected the concern that, in order to safeguard
women‘s special role within the home, the government was justified
in limiting her role in the workplace to accommodate her familial
responsibilities, and protect her from exploitation of unscrupulous
employers.33 And so began an era of protective labor legislation
designed
to
accommodate
women‘s
primary
household
31
32
33
Id. at 42122.
Id.
See id.
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responsibilities as wives and mothers.34 Though courts were
instrumental in constructing appropriate roles for women
(regardless of marital or parental status) through the interpretation
of state and federal legislation, the primary target of these laws was
female workers working outside the family home.35
Alongside the laws designed to afford female workers some level
of protection while doing work outside the home (or, as others would
argue, to unduly restrict women‘s freedom to contract), courts and
legislatures refused to regulate work done within the home if that
work was done by a member of the household (usually a woman).36
Unpaid domestic work done by women within their own homes was
not considered real work. 37 In Eichholz v. Shaft, the court held:
The upkeep and care of a home for one‘s self and family are
not in the category of a trade, business, profession, or
occupation, as generally understood.
A home is not
established and maintained in the expectation of pecuniary
gain. Such a venture is solely an expense. It therefore did
not come within the original purpose of the [Minnesota
Workmen‘s Compensation Act] to include the home as an
industry to be burdened with the accidental injuries of
servants therein engaged.38
Regulation of one‘s own housework within one‘s own home was,
and continues to be, largely beyond the reach of state regulation. It
34 See Adkins v. Children‘s Hosp. of D.C., 261 U.S. 525 (1923) (by invalidating as
unconstitutional a District of Columbia statute which fixed a minimum wage for women, the
Supreme Court reinforced the domestic role of women by depriving them of an opportunity to
earn a living wage); see also Muller v. Oregon, 208 U.S. 412, 423 n.1 (1908) (―The following
legislation of the states imposes restriction in some form or another upon the hours of labor
that may be required of women: Massachusetts: 1874, Rev. Laws 1902, chap. 106, § 24; Rhode
Island: 1885, Acts and Resolves 1902, chap. 994, p. 73; Louisiana: 1886, Rev. Laws 1904, vol.
1, § 4, p. 989; Connecticut: 1887, Gen. Stat. Revision 1902, § 4691; Maine: 1887, Rev. Stat.
1903, chap. 40, § 48; New Hampshire: 1887, Laws 1907, chap. 94, p. 95; Maryland: 1888, Pub.
Gen. Laws 1903, art. 100, § 1; Virginia: 1890, Code 1904, title 51A, chap. 178A, §
3657 b; Pennsylvania: 1897, Laws 1905, No. 226, p. 352; New York: 1899, Laws 1907, chap.
507, § 77, subdiv. 3, p. 1078; Nebraska: 1899, Comp. Stat. 1905, § 7955, p. 1986; Washington:
Stat. 1901, chap. 68, § 1, p. 118; Colorado: Acts 1903, chap. 138, § 3, p. 310; New Jersey: 1892,
Gen. Stat. 1895, p. 2350, §§ 66. 67; Oklahoma; 1890, Rev. Stat. 1903, chap. 25, art. 58, § 729;
North Dakota: 1877, Rev. Code 1905, § 9440; South Dakota: 1877, Rev. Code (Penal Code §
764), p. 1185; Wisconsin: 1897, Code 1898, § 1728; South Carolina: Acts 1907, No. 233.‖).
35 See id.
36 See Marshall v. Cordero, 508 F. Supp. 324 (D.P.R. 1981) (holding that unpaid domestic
service does not fall under Congress‘s power to regulate matters affecting interstate
commerce).
37 See id.
38 Eichholz v. Shaft, 208 N.W. 18, 19 (Minn. 1926).
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is perhaps this same reluctance to interfere with ―ordinary,‖
―private,‖ familial arrangements that supported the general
disinclination to regulate all sorts of work done within the home,
whether performed by ―housewives‖ or by paid workers. Such
reluctance is unsurprising, and indeed, not completely
unwarranted. The home does represent a refuge for families and
individuals from external pressures. It is often a place of safety to
which members of the household are able to retreat and regroup, to
find and offer support and care, to go about sustaining themselves
and others through private activities. To some degree, households
do deserve to operate outside the watchful gaze of the government.
The home does warrant its own ideological connection to private
space in order to support individuals and families. Therefore, it is
to be expected that the ideological meaning of the home has found
support in the law.39 The home is viewed as a special place.
It is interesting to see the common societal view of the
importance of the home so thoroughly reflected in the law‘s
treatment of the family home.
As in the popular
imagination, the home holds an exalted, near sacred status
in Anglo-American jurisprudence. Its ideological connection
to private family relations and its declared importance as the
basis for societal growth and success has resulted in a legal
posture that preserves the home as an institution, the
sanctity of which ought not to be disturbed by the state.40
However, to ensure the safety and wellbeing of those incapable of
ensuring it for themselves or others, requires state interference is
required.41 Moreover, it is the government‘s unwillingness to reach
39 Even the legal definition of ―domicile‖ reflects an emotional bond between home and the
individual. For example, the definition of domicile is ―[t]hat place where a man has his true,
fixed and permanent home and principal establishment and to which whenever he is absent
he has the intention of returning.‖ BLACK‘S LAW DICTIONARY 484 (6th ed. 1990); see also
State v. Bachmann, 521 N.W. 2d 886, 888 (Minn. Ct. App. 1994) (quoting Anderson v. Ueland,
267 N.W. 517, 518 (Minn. 1936) (―‗[T]he home is a sacred place for people to go and be quiet
and at rest and not be bothered with the turmoil of industry,‘ and that as such it is ‗a
sanctuary of the individual and should not be interfered with by industrial disputes.‘ We
think [this] conception of ‗home‘ as ‗a sanctuary of the individual‘ is sound. The word is
defined as, ‗the abiding place of the affections, [especially] domestic affections‘; as ‗the social
unit formed by a family residing together in one dwelling,‘ and as ‗an organized center of
family life.‘‖)).
40 Donna E. Young, “To the Stars Through Difficulties”: The Legal Construction of Private
Space and the Wizard of Oz, 20 S. CAL. INTERDISC. L.J. 135, 142 (2010).
41 Child Abuse Amendments of 1984, Pub. L. No. 457, 98 Stat. 1749 (1984); see also
Keeping Children and Families Safe Act of 2003, 108 Pub. L. No. 36, 117 Stat. 800 (2003).
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within the home that has encouraged some of the most egregious
cases of abuse and exploitation found in any employment context.42
Working within someone else‘s home exposes workers to an isolated
work environment that can be full of exploitative work
arrangements, and physical and emotional trauma.43 In fact,
domestic work provides unique opportunities for bad behavior by
unscrupulous employers.44 There are no built-in restraints on
employer prerogatives. Therefore, though the home is unlike most
other employment settings, when someone is employed within it, it
42 Clearly abuse and exploitation are not confined to employment relations.
Domestic
violence can and does take place within the home, the effects of which are often devastating.
See generally Matthew v. State, 837 So. 2d 1167 (Fla. Dist. Ct. App. 2003).
43 See, e.g., United States v. Alzanki, 54 F.3d 994, 9981000 (1st Cir. 1995) (finding an
employer guilty of committing involuntary servitude where he and his wife brought a Sri
Lankan native to the United States to clean their home for fifteen hours a day for $120);
Tabion v. Mufti, 877 F. Supp. 285, 28687 (E.D. Va. 1995) (employer employed a domestic
servant to cook, clean, and care for their children at least sixteen hours per day, everyday of
the week, at an average hourly wage of fifty cents); United States v. Kozminski, 487 U.S. 931,
935 (1998) (defendants forced workers to care for their family farm for little to no weekly pay,
and verbally and physically abused them when their work was not satisfactory); United
States v. Supawan Veerapol, 312 F.3d 1128 (9th Cir. 2002) (Thai workers were forced to work
long hours cooking and cleaning while the defendant controlled the workers with verbal abuse
and physical violence); United States v. Bradley, 390 F.3d 145 (1st Cir. 2004) (defendants
used threats and actual violence to keep workers from complaining to the police about
mistreatment); Paredes v. Vila, 479 F. Supp. 2d 187, 18990 (D.C. Cir. 2007) (defendants did
not pay domestic workers according to the agreed upon contract price); United States v.
Sabhnani, 566 F. Supp. 2d 148, 156 (E.D.N.Y. 2008) (defendant was convicted on counts of
forced labor; testimony revealed that the domestic workers were beaten and humiliated in
front of each other and others).
44 See Testimony of Domestic Workers: Public Hearing on Domestic Employment Conditions
in New York State Before the N.Y. Assemb. Comm. On. Labor, 2008 Leg., 213th Sess. (N.Y.
2008), available at http://www.domesticworkersunited.org/media/files/206/Domestic-Workerstestimonies.pdf. Here is an example of a statement of a domestic worker:
One day, I got sick. I was sweating and shivering, and I fell on the couch. I needed to go
home, but she said, ―Freda, I have a meeting, take two Tylenols.‖ I took two Tylenols
and lay on the couch. She didn‘t come home at 6pm like she promised. Domestic
workers are not supposed to get sick, you‘re not supposed to take time off. Last year,
both of my employers were sick for two weeks, and they both lay in bed for two weeks,
but I still had to come to work full time.
When I needed to go to the doctor, I would come to her a month ahead and she would
write it down and say, ―I‘ll see what I can do for you.‖ Sometimes she would say, ―Do you
have a friend who can fill in for you?‖ Then, she wouldn‘t pay herI‘d have to pay her
myself.
I never got a job contract. She said we don‘t negotiate because she paid me good and she
saw no reason to give me a raise. I was not happy with my pay but I was grateful for it.
It was not manageable for my family. I told her that after a year, I‘m entitled to an
increase of pay and a Christmas bonus, and she said, ―We‘ll see.‖ When December came
and I stood up and said, ―I expect to get my bonus, it‘s been six months,‖ she gave me one
week‘s salary and that was it.
Id. at 3.
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must nonetheless be subject to regulation consistent with its status
as a workplace. In employing a domestic worker then, members of
the household subject themselves to governmental oversight in
enforcement of the new law.
III. PARAMETERS OF NEW YORK‘S DOMESTIC WORKERS BILL OF
RIGHTS
―I am not a thief. I am not an object for sexual pleasure. I am a
human being.‖45 There are an estimated 2.5 million women serving
as domestic workers in the United States.46
They are
predominantly immigrant women of color, and are often
undocumented.47 Over half of them are the primary wage earners
in their households.48 Many of them face intolerable employment
situations. New York‘s law was passed in recognition that these
workers represent one of the most easily exploitable supplies of
labor in the United States. Because their work takes place behind
the closed doors of someone else‘s household, and most often outside
the company of other workers, the work that is done, and the
conditions of the workplace, are shielded from public view. In such
a setting, domestic workers are vulnerable to abuse in the form of
sexual and economic exploitation, harassment, and isolation.49 In
the hearings leading up to passage of the bill, several domestic
Id. (statement of Monica Ledesma).
Ai-jen Poo, Organizing with Love: Lessons from the New York Domestic Workers Bill of
Rights Campaign, LEFT TURN (Dec. 1, 2010), available at http://www.leftturn.org/Organizingwith-Love.
47 PAM WHITEFIELD, SALLY ALVAREZ & YASMIN EMRANI, IS THERE A WOMEN‘S WAY OF
ORGANIZING?: GENDER, UNIONS, AND EFFECTIVE ORGANIZING 12 (2010), available at
http://www.ilr.cornell.edu/laborPrograms/upload/Cornell-womens-way-of-organizing_revised_
Layout-2.pdf.
48 Id.
49 One domestic employee testified that after working between about nineteen to twenty
hours per day at a low rate of pay, she was eventually fired after showing her employer some
literature she had received from Domestic Workers United. Before she was let go, she was
physically assaulted, presumably because she had not taken her child to the park:
She [the employer] was furious and yelled at me. I asked her to stop. She continued
insulting me and pushed me. She insisted that I return the keys to the apartment. I
understood then that she was firing me, that I had to leave and that I should gather my
things. So, she grabbed me by the hair, slapped me and punched my arm. She grabbed
my things and threw them on the floor yelling and stomping on them. She said that I
was born to be a servant, not a nanny. And that Domestic Workers United didn‘t know
what they were talking about because I did not have rights.
Testimony of Domestic Workers, supra note 44, at 5.
45
46
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workers testified to their poor treatment by employers.50 At the
November 2008 Hearing on Domestic Employment by the New York
State Assembly, several domestic workers were able to tell their
stories in order to highlight the need for the proposed legislation.51
One woman testified,
The second day on the job, the employer started in on me. I
was in the living room when he went to shower. From there,
he called out to me, ―Elizabeth, please get me the phone.‖ I
entered the room and responded, ―Where are you?‖ ―In the
shower,‖ he answered. When I entered, he had the curtain
opened completely. I was shocked. I grabbed the phone and
threw it. I was furious.
From then on, I became very aggressive. I was no longer the
same person who had started. He never tried anything with
me again. I wish I could say the same about the other
workers.52
If this incident had happened in a typical workplace, it would
very clearly be considered sexual harassment.53 Yet, before the new
law, a domestic worker would have no recourse aside from a
complaint to the police. But this avenue of redress is not realistic.
Given that many domestic workers are undocumented, they would
understandably be reluctant to complain to the authorities for fear
of losing their jobs or being deported. In fact, given this fear it is
unclear whether the new antidiscrimination provisions54 will suffice
See generally id. (documenting the testimony of several domestic workers).
Id.
52 Id.
53 To be actionable, a claim of a hostile environment of sexual harassment must contain
not only pervasive harassment, but also criminal conduct of the most serious nature. Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
54 Domestic Workers Bill of Rights protects workers against all forms of discrimination
prohibited under New York‘s Executive Law, Section 296-b(2):
It shall be an unlawful discriminatory practice for an employer to:
(A) Engage in unwelcome sexual advances, requests for sexual favors, or other verbal or
physical conduct of a sexual nature to a domestic worker when: submission to such
conduct is made either explicitly or implicitly a term or condition of an individual‘s
employment; submission to or rejection of such conduct by an individual is used as the
basis for employment decisions affecting such individual; or such conduct has the
purpose or effect of unreasonably interfering with an individual‘s work performance by
creating an intimidating, hostile, or offensive working environment.
(B) Subject a domestic worker to unwelcome harassment based on gender, race, religion
or national origin, where such harassment has the purpose or effect of unreasonably
interfering with an individual‘s work performance by creating an intimidating, hostile,
or offensive working environment.
N.Y. EXEC. LAW § 296-b(2) (McKinney 2010).
50
51
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to encourage domestic workers to come forward with discrimination
complaints, notwithstanding its applicability to undocumented
workers. Moreover, ―it may be the case that immigrant women are
the domestic workers of choice for many families for the very reason
that they lack the resources to realize their rights.‖55 Yet, its very
existence promises to provide protections where there were none
before.56
In addition to its antidiscrimination provisions, the legislation
also provides for overtime pay, a weekly day of rest, and paid time
off.57 Under the new law, every domestic worker is entitled to at
least twenty-four consecutive hours of rest every week, and may not
be forced to work on that day.58 Any employee working forty or
more hours per week is entitled to seven paid sick days, while an
employee working between twenty and thirty-nine days per week is
entitled to four days of paid sick leave.59 The statute also provides
for paid vacations, and any employee is entitled to three days paid
time off after working for the same employer for one year.60
The bill also serves to regulate how employment is terminated.61
Domestic workers are now entitled to at least fourteen days‘ notice
before their last day of work.62 If the employer fails to provide such
notice, the employee has the right to collect ―backpay for the notice
period and the value of the cost of any benefits to which the worker
would have been entitled during the notice period.‖63 However,
when an employee is terminated because of theft or destruction of
property, or when the employer has a reasonable and good faith
See Young, supra note 12, at 36.
Employers need to respect us as workers. The Domestic Workers Bill of Rights is
important to me because it will give us our privileges. When the employers know that
these rights exist, they will not treat us like they do now. They treat us now the same as
they treated us in the 1940s. The bill would cause employers to treat us with dignity.
We hope that the Bill of Rights will pass so that we get what we deserve. The Bill of
Rights passing would mean freedom. This would be one of the greatest things. I would
be so amazed and so happy. All domestic workers would really be happy that we‘d
achieved something and that we got the respect we deserve.
Testimony of Domestic Workers, supra note 44, at 4.
57 S. S2311-E, 233d Sess. (N.Y. 2009), N.Y. LAB. LAW § 161 (2011) (proposing general
benefits provisions).
58 It also provided that a domestic worker‘s day off should, if possible, coincide with his or
her religion‘s recognized day of worship. Id.
59 Id.
60 Id.
61 Robert B. Fitzpatrick, Current Developments in Employment Law: The Obama Years,
2010 ST. L. DEV. 957, 960 (2010).
62 Id.
63 Id.
55
56
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belief that the employee has committed neglect, assault, or abuse in
the workplace, the notice requirement is inapplicable.64 The burden
of proof here is on the employer.65 Importantly, the legislation
renders domestic workers eligible for unemployment compensation
and workers‘ compensation.66 The law also protects domestic
workers‘ rights to organize and bargain as a collective, but not to
form unions.67 However, after conducting a feasibility study on the
question of unionization, the New York State Department of Labor
identified several different ways in which domestic workers could
potentially unionize, while acknowledging that there would be
practical barriers in doing so given the ―special circumstances‖ of
the industry,68 and the highly decentralized nature of domestic
employees‘ worksites.69 The report set forth alternative means by
which domestic employees could work to improve workplace
conditions, including hiring halls, expansion of health insurance
benefits, and written employment contracts.70 The portion of this
report dealing with unionization of workers has not yet been
released.71
The advocacy group, Domestic Workers United (―DWU‖), also
released a report studying the feasibility of collective bargaining of
domestic workers,72 and proposed its inclusion in the State Labor
Relations Act.73 DWU urges that unionization is the final step in
ensuring safe working conditions for these unique employees and,
contrary to the state‘s proposition, believes that unionization can
and should be put into practice.74 The organization has appealed to
Id.
Id.
66 Id.
67 James Gray Pope, A Free Labor Approach to Human Trafficking, 158 U. PA. L. REV.
1849, 1860 (2010).
68 Daniel Massey, Tough Road to Domestic Workers‟ Union, Report Says, CRAIN‘S N.Y.
BUS. (Nov. 10, 2010), http://www.crainsnewyork.com/article/20101110/FREE/101119982.
69 Id.
70 Id.
71 Emily Jane Goodman, Landmark State Law Protecting Domestic Workers Takes Effect,
GOTHAM GAZETTE, Nov. 29, 2010, available at http://www.gothamgazette.com/article/Law/
20101129/13/3420.
72 See Jenny Brown, Time to Bargain, Say New York‟s Domestic Workers, LABOR NOTES,
Oct. 28, 2010, available at http://www.labornotes.org/2010/10/time-bargain-say-new-yorksdomestic-workers.
73 DWU/NDWA/UJC ReportCollective Bargaining Feasible for Domestic Workers!,
DOMESTIC WORKERS UNITED (Nov. 1, 2010), http://www.domesticworkersunited.org/
shownews/67.
74 See id.
64
65
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New York‘s Public Employee Relations Board to designate the
appropriate bargaining unit, whether it‘s by geography, type of
domestic labor, or another.75
IV. SEXUAL HARASSMENT IN THE HOME, FREE SPEECH, AND PRIVACY
RIGHTS
Some might argue that the Domestic Workers Bill of Rights is
vulnerable to constitutional attack with regard to its enforcement,
which would require considerable intrusion into the private home of
employers.
However, depending on the alleged violation,
enforcement ought not to pose any insurmountable constitutional
problems. The New York State Department of Labor and the
Attorney General are charged with enforcing the law. If disputes
arise involving pay, overtime, or vacation pay, there would be little
reason for any state actor to do more than a routine investigation
into the allegations. The investigation might involve examining
records kept by the employer, such as work schedules and pay slips,
or it might involve interviewing witnesses. It would be rather
unusual in these sorts of disputes for there to be an inspection of
the workplace. Likewise, allegations that the employer has engaged
in certain forms of unlawful discrimination could be addressed in
the same manner that all such complaints are handled, that is,
through an examination of documentary evidence and testimony.
However, under certain circumstances, an employer‘s right to be
left alone76 might conflict with the rights of workers to be free from
a discriminatory workplace. In one testimonial by a domestic
employee, the New York State Assembly heard of an incident in
which the worker and her daughter both worked for the same
employer.77 When the employee heard that the male employer was
sexually harassing her daughter by walking around the apartment
with his pants down, she handed him a letter written by the
Domestic Workers Union, an advocacy group, asking him to stop.78
Brown, supra note 72.
See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)
(stating that the makers of our Constitution ―conferred, as against the government, the right
to be let alone . . . , the most comprehensive of rights and the right most valued by civilized
men‖).
77 See Testimony of Domestic Workers, supra note 44, at 1 (statement of Elizabeth, a
domestic worker).
78 Id. at 12. This domestic worker stated, ―he would take out his penis and walk around
the house. He would call her to the bedroom and she would find him in there with his pants
75
76
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She was fired.79 Under the new law, the domestic employee could
file a complaint and have it investigated and resolved without
undue interference with the employer‘s private home. However, if
the claim alleges hostile work environment harassment, because of
the presence of erotic paintings or photographs, pornographic books
and film, erotic sculpture, or other forms of erotic art, then an
investigation might involve a physical examination of the contents
of the home.80 If this is the case, then the constitutional right to
free speech under the First Amendment is implicated because the
workplace is someone‘s home. In Stanley v. Georgia,81 the Supreme
Court held:
[W]e think that mere categorization of these films as
―obscene‖ is insufficient justification for such a drastic
invasion of personal liberties guaranteed by the First and
Fourteenth Amendments.
Whatever may be the
justifications for other statutes regulating obscenity, we do
not think they reach into the privacy of one‘s own home. If
the First Amendment means anything, it means that a State
has no business telling a man, sitting alone in his own house,
what books he may read or what films he may watch. Our
whole constitutional heritage rebels at the thought of giving
government the power to control men‘s minds.82
Furthermore, there are at least two additional bases for
constitutional attack against the enforcement of the new law with
regard to sexual harassment claims: 1) the right to privacy and 2)
the right to free speech. In the employment setting, both lines of
argument have been invoked by public sector workers against the
governmental agencies for which they work.83 With regard to the
domestic work environment, the constitutional questions arise in
the context of an employment setting that is unlike any other. Most
down.‖ Id.
79 Id.
80 N.Y. EXEC. LAW § 296-b(2) (McKinney 2010).
81 Stanley v. Georgia, 394 U.S. 557 (1969).
82 Id. at 565.
83 See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 41315 (2006) (concerning speech made
pursuant to official duties); Rankin v. McPherson, 483 U.S. 378, 38182 (1987) (concerning a
statement made in response to an attempt to assassinate the president); Perry v.
Sindermann, 408 U.S. 593 (1972) (concerning public criticism of policies of the college
administration); Pickering v. Bd. of Educ., 391 U.S. 563, 564 (1968) (concerning a letter sent
to a local newspaper regarding a proposed tax increase); Vega Rodriguez v. Puerto Rico Tel.
Co., 110 F.3d 174, 17677 (1st Cir. 1997) (concerning video surveillance in the workplace).
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constitutional cases involving the right to privacy and speech arise
out of a public employment setting in which the employer is the
relevant state actor.84 In the domestic work setting, allegations of
constitutional infringement against an employer would take place
within the setting of her own private home. This setting might
require a slightly different approach if the government action takes
the form of a search of the workplace. For example, in VegaRodriguez v. Puerto Rico Telephone Co.,85 the court held that,
―[g]enerally speaking, business premises invite lesser privacy
expectations than do residences.‖86 However, the Vega-Rodriguez
case involved an analysis of a public employee‟s expectation of
privacy while working in a public sector workplace.87 However, the
Supreme Court has required search warrants for businesses and
private homes alike. For example, it held that, ―except in certain
carefully defined classes of cases, a search of private property
without proper consent is ‗unreasonable‘ unless it has been
authorized by a valid search warrant.‖88 Moreover,
a search of private houses is presumptively unreasonable if
conducted without a warrant. The businessman, like the
occupant of a residence, has a constitutional right to go about
his business free from unreasonable official entries upon his
private commercial property. The businessman, too, has
that right placed in jeopardy if the decision to enter and
inspect for violation of regulatory laws can be made and
enforced by the inspector in the field without official
authority evidenced by a warrant.89
If this is the case, then an argument can be made that the
government must not interfere with the significant expectations of
privacy within the family home, as it deserves heightened
protection despite its status as home or workplace. However, when
the family home is the site of an employment relationship, then
notwithstanding its dual status as home and workplace, the
84 See, e.g., Nat‘l Treasury Employees Union v. Von Raab, 489 U.S. 656, 65962 (1989)
(drug testing as search); Rankin, 483 U.S. at 38486 (balancing employees‘ free speech rights
with regard to a matter of public concern against employers‘ rights to efficient service); VegaRodriguez, 110 F.3d at 17677 (characterizing continuous video surveillance as violation of
privacy rights).
85 Vega-Rodriguez, 110 F.3d 174 (1st Cir. 1997).
86 Id. at 178.
87 Id. at 17880.
88 Camara v. Mun. Ct., 387 U.S. 523, 52829 (1967) (citations omitted).
89 See v. City of Seattle, 387 U.S. 541, 543 (1967).
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expectation of privacy should be the same as would apply in a more
typical workplace. That is, the home environment deserves no
special deference as long as it is operating as a place of employment.
V. CONCLUSION
New York‘s Domestic Workers Bill of Rights will be a model for
similar laws throughout the country.90 And it should be. It
represents the first meaningful attempt to address the interests of
domestic workers, and to protect them from exploitation and abuse.
Yet, it probably does not go far enough to address the legitimate
concerns of workers who might be especially vulnerable to
exploitative working arrangements—those who are poor and who
are from developing countries, and who may be in the United States
unlawfully. For these women, their undocumented status makes
them particularly vulnerable to abuse and retaliatory actions by
employers if they dare to use the law to protect their interests. The
ability to form unions and to bargain collectively would be of great
benefit. Even with the passage of the Domestic Workers Bill of
Rights, domestic employees will remain vulnerable to pressure from
their employers for fear of losing their jobs91 and/or of being
deported. The work that they do is physically isolated, making it
more difficult to socialize and organize. Yet, their best chance at
protecting their interests is by banding together to negotiate their
terms of employment.92 Individually, their bargaining ability is still
limited. The New York State Assembly has recognized the worth of
the work that is done within the home by enacting the new law.
Other states are considering similar legislation. Domestic workers
have never enjoyed so much public attention and goodwill.
Unionization is the obvious, and the necessary, next step.
90 A similar bill was recently introduced in the California legislature. A.B. 889, 20112012
Assem. (Ca. 2011).
91 With the economic downturn, and the high unemployment rate of the people who would
otherwise hire them, domestic workers are losing work and finding it difficult to find other
domestic labor jobs. Julie Scelfo, Trickledown Downsizing, N.Y. TIMES, Dec. 10, 2008,
http://www.nytimes.com/2008/12/11/garden/11domestics.html; Thom Patterson, Recession
Shades Up Child Care for Families, CNN.COM/LIVING (Mar. 31, 2009), http://www.cnn.com/
2009/living/03/30/nanny.jobs.
92 ―Recent data on union organizing has shown that working women and particularly
women of color in the United States are more likely than any other demographic group to
pursue union representation.‖ WHITEFIELD, ALVAREZ & EMRANI, supra note 47, at 3.