Gracen Eiland, Law & Public Policy Scholar, JD Anticipated May 2021
As of November 2019, Philadelphia is the largest city (and one of only two cities) in America to create a Domestic Worker Bill of Rights. The measure is aimed at protecting low-wage workers who are expressly denied basic workplace protections and benefits under federal law. While a few states, as well as Congress, are working on their own versions of a Domestic Worker Bill of Rights, the situation in Philadelphia for domestic workers is unique and demanded an individualized, immediate response.
Philadelphia is the poorest major metropolitan city in the United States. Our poverty rate has remained around 26% for the past two-three years, far higher than the national average of 13%. Domestic workers in Philadelphia—numbering roughly at 16,000—earn an average yearly salary of just $10,000—far below the poverty line for a single individual with no dependents. Additionally, the hourly wages for domestic workers fall far below the minimum wage. Domestic workers in Philadelphia, therefore, are the poorest workers in the poorest city in one of the wealthiest countries in the world.
On top of criminally low wages, domestic workers have virtually no protections under federal law—which is not an oversight. The Fair Labor Standards Act (FLSA) is directly linked to Jim Crow laws. Domestic workers are overwhelmingly women (95%), and more specifically women of color (54%). When drafted, domestic workers were intentionally left out of the FLSA in order to appease Southern states that refused to pay or treat their “personal servants” (read: formerly enslaved black female workers) fairly. Though amended in the 1970s to include some domestic workers, FLSA still intentionally excluded live-in nannies and housekeepers. Domestic workers are also explicitly excluded from the National Labor Relations Act, which states that the term “employee . . . shall not include any individual employed . . . in the domestic service of any family or person at his home[.]” Domestic workers were later “inadvertently” left out of the Civil Rights Act, which only applies to employers of fifteen employees or more. The Occupational Health and Safety Act also does not apply to domestic workers.
Because of their exclusion from essential labor protection legislation, domestic workers are not guaranteed a minimum wage, safe working conditions, overtime pay, health insurance, paid-time off, protection from discrimination on the basis of race, color, religion, sex, or national origin, and many other basic worker protections. The very nature of the work—behind closed doors in individual homes—makes domestic workers incredibly vulnerable to harassment, wage-theft, violence, and discrimination with no ability for recourse.
The Philadelphia Domestic Workers Bill of Rights, which will go into effect in May of 2020, will close these loopholes by expanding civil rights and worker protections to domestic workers citywide. As a starting point, the bill includes a provision requiring a formal contract for any person who hires a domestic worker for five or more hours a month. The contract must include specific duties, paid meal and rest breaks, paid and unpaid leave time, termination notice, and other fundamental labor provisions. It must also include the rights that the domestic worker is entitled to and it must be provided in the preferred language of the employee. If an individual contract is not provided, a standard template provided by the City will be presumed to rule.
Additionally, benefits will be provided to domestic workers through an “portable benefits” system that will require each employer to contribute to the worker’s paid leave fund at a rate dependent upon hours worked for each specific employer. This measure closes the loophole that once allowed employers to forgo paying benefits to domestic workers who spread their hours across multiple employers.
Though implementation of the Domestic Worker Bill of Rights may be challenging given the nature and culture of the employment (i.e. behind closed doors, under-the-table transactions, and vulnerable populations), Philadelphia has taken a huge step towards adequately protecting domestic workers and should be applauded for doing so. As more and more cities, states, and even Congress begin to contemplate their own bills, Philadelphia can be proud in setting a working example with this piece of legislation.