New York’s Healthy Workplace Bill (2010)

October 5, 2010 by Leave a Comment

*  This bill was approved by the New York State Senate on May 12, 2010 by a vote of 45 to 16, with one abstention. It failed to gain passage in the House.  See the general blog entry about the Healthy Workplace Bill (HWB) to read an analysis of the problems with the HWB.  It’s needs work! PGB

S1823B: Establishes a civil cause of action for employees who are subjected to an abusive work environment

S1823B Summary Establishes a civil cause of action for employees who are subjected to an abusive work environment.

TITLE OF BILL : An act to amend the labor law, in relation to establishing a private cause of action for an abusive work environment

PURPOSE : To establish a civil cause of action for employees who are subject to an abusive work environment.

SUMMARY OF PROVISIONS : Clearly states the definitions of abusive conduct; abusive work environment; conduct; constructive discharge; employee; employer; malice; negative employment decision; physical harm; and psychological harm.

Section 3 defines Unlawful Employment Practice

Section 4 defines Employer Liability

Section 5 defines Defenses

Section 6 defines Retaliation

Section 7 defines Relief generally Employer liability

Section 8 defines Procedures Private right of action Time limitations

Section 9 defines Effect on Collective Bargaining Agreements

Section 10 defines Effect on other state laws other state laws Worker’s compensation and election remedies

JUSTIFICATION : The social and economic well-being of the state is dependent upon healthy and productive employees. Surveys and studies have documented that between 16 to 21 percent of employees directly experience health-endangering workplace bullying, abuse and harassment, and that this behavior is four times more prevalent than sexual harassment alone. Surveys and studies have also documented that abusive work environments can have serious effects on targeted employees, including feelings of shame and humiliation, stress, loss of sleep, severe anxiety, depression, posttraumatic stress disorder, reduced immunity to infection, stress related gastrointestinal disorders, hypertension, pathophysiologic changes that increase the risk of cardiovascular disease and other such effects. This legislation will provide legal redress for employees who have been harmed, psychologically, physically, or economically. It will also provide legal incentives for employers to prevent and respond to mistreatment of employees at work.
S1823B Text

S T A T E O F N E W Y O R K
1823–B
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:

Section 1. The labor law is amended by adding a new article 20-D to read as follows:
ARTICLE 20-D ABUSIVE WORK ENVIRONMENT SECTION 760. LEGISLATIVE FINDINGS AND INTENT. 761. DEFINITIONS. 762. ABUSIVE WORK ENVIRONMENT. 763. EMPLOYER LIABILITY. 764. DEFENSES. 765. RETALIATION. 766. REMEDIES. 767. ENFORCEMENT. 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. 769. EFFECT OF OTHER LAWS.

S 760. LEGISLATIVE FINDINGS AND INTENT. THE LEGISLATURE HEREBY FINDS THAT THE SOCIAL AND ECONOMIC WELL-BEING OF THE STATE IS DEPENDENT UPON HEALTHY AND PRODUCTIVE EMPLOYEES. SURVEYS AND STUDIES HAVE DOCUMENTED THAT BETWEEN SIXTEEN AND TWENTY-ONE PERCENT OF EMPLOYEES DIRECTLY EXPE RIENCE HEALTH ENDANGERING WORKPLACE BULLYING, ABUSE AND HARASSMENT. SUCH BEHAVIOR IS FOUR TIMES MORE PREVALENT THAN SEXUAL HARASSMENT. THESE EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00743-04-0
S. 1823–B 2 SURVEYS AND STUDIES HAVE FURTHER FOUND THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS EFFECTS ON THE TARGETED EMPLOYEES, INCLUDING FEELINGS OF SHAME AND HUMILIATION, STRESS, LOSS OF SLEEP, SEVERE ANXIETY, DEPRESSION, POST-TRAUMATIC STRESS DISORDER, REDUCED IMMUNITY TO INFECTION, STRESS-RELATED GASTROINTESTINAL DISORDERS, HYPERTENSION, AND PATHOPHYSIOLOGIC CHANGES THAT INCREASE THE RISK OF CARDIOVASCULAR DISEASES. FURTHERMORE, THE LEGISLATURE FINDS THAT ABUSIVE WORK ENVIRONMENTS CAN HAVE SERIOUS CONSEQUENCES FOR EMPLOYERS, INCLUDING REDUCED EMPLOYEE PRODUCTIVITY AND MORALE, HIGHER TURNOVER AND ABSENTEEISM RATES, AND SIGNIFICANT INCREASES IN MEDICAL AND WORKERS’ COMPENSATION CLAIMS. THE LEGISLATURE HEREBY FINDS THAT UNLESS MISTREATED EMPLOYEES HAVE BEEN SUBJECTED TO ABUSIVE TREATMENT IN THE WORKPLACE ON THE BASIS OF RACE, COLOR, SEX, NATIONAL ORIGIN OR AGE, SUCH EMPLOYEES ARE UNLIKELY TO HAVE LEGAL RECOURSE TO REDRESS SUCH TREATMENT. THE LEGISLATURE HEREBY DECLARES THAT LEGAL PROTECTION FROM ABUSIVE WORK ENVIRONMENTS SHOULD NOT BE LIMITED TO BEHAVIOR GROUNDED IN A PROTECTED CLASS STATUS AS REQUIRED BY EMPLOYMENT DISCRIMINATION STAT UTES. EXISTING WORKERS’ COMPENSATION PROVISIONS AND COMMON LAW TORT LAW ARE INADEQUATE TO DISCOURAGE SUCH ABUSIVE CONDUCT AND PROVIDE ADEQUATE REDRESS TO EMPLOYEES WHO HAVE BEEN HARMED BY ABUSIVE WORK ENVIRONMENTS. THE PURPOSE OF THIS ARTICLE SHALL BE TO PROVIDE LEGAL REDRESS FOR EMPLOYEES WHO HAVE BEEN HARMED PSYCHOLOGICALLY, PHYSICALLY OR ECONOM ICALLY BY BEING DELIBERATELY SUBJECTED TO ABUSIVE WORK ENVIRONMENTS; AND TO PROVIDE LEGAL INCENTIVES FOR EMPLOYERS TO PREVENT AND RESPOND TO MISTREATMENT OF EMPLOYEES AT WORK.

S 761. DEFINITIONS. AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1. “ABUSIVE CONDUCT” MEANS CONDUCT, WITH MALICE, TAKEN AGAINST AN EMPLOYEE BY AN EMPLOYER OR ANOTHER EMPLOYEE IN THE WORKPLACE, THAT A REASONABLE PERSON WOULD FIND TO BE HOSTILE, OFFENSIVE AND UNRELATED TO THE EMPLOYER’S LEGITIMATE BUSINESS INTERESTS. IN CONSIDERING WHETHER SUCH CONDUCT IS OCCURRING, THE TRIER OF FACT SHOULD WEIGH THE SEVERITY, NATURE AND FREQUENCY OF THE CONDUCT. ABUSIVE CONDUCT SHALL INCLUDE, BUT NOT BE LIMITED TO, REPEATED INFLICTION OF VERBAL ABUSE, SUCH AS THE USE OF DEROGATORY REMARKS, INSULTS AND EPITHETS; VERBAL OR PHYSICAL CONDUCT THAT A REASONABLE PERSON WOULD FIND THREATENING, INTIMIDATING OR HUMILI ATING; OR THE GRATUITOUS SABOTAGE OR UNDERMINING OF AN EMPLOYEE’S WORK PERFORMANCE. A SINGLE ACT SHALL NOT CONSTITUTE ABUSIVE CONDUCT, UNLESS THE TRIER OF FACT FINDS SUCH ACT TO BE ESPECIALLY SEVERE OR EGREGIOUS. 2. “ABUSIVE WORK ENVIRONMENT” MEANS A WORKPLACE IN WHICH AN EMPLOYEE IS SUBJECTED TO ABUSIVE CONDUCT THAT IS SO SEVERE THAT IT CAUSES PHYS ICAL OR PSYCHOLOGICAL HARM TO SUCH EMPLOYEE, AND WHERE SUCH EMPLOYEE PROVIDES NOTICE TO THE EMPLOYER THAT SUCH EMPLOYEE HAS BEEN SUBJECTED TO ABUSIVE CONDUCT AND SUCH EMPLOYER AFTER RECEIVING NOTICE THEREOF, FAILS TO ELIMINATE THE ABUSIVE CONDUCT. 3. “CONDUCT” MEANS ALL FORMS OF BEHAVIOR, INCLUDING ACTS AND OMISSIONS TO ACT. 4. “CONSTRUCTIVE DISCHARGE” MEANS ABUSIVE CONDUCT AGAINST AN EMPLOYEE THAT CAUSES SUCH EMPLOYEE TO RESIGN FROM HIS OR HER EMPLOYMENT. 5. “MALICE” MEANS THE INTENT TO CAUSE ANOTHER PERSON TO SUFFER PSYCHO LOGICAL, PHYSICAL OR ECONOMIC HARM, WITHOUT LEGITIMATE CAUSE OR JUSTI FICATION. MALICE MAY BE INFERRED FROM THE PRESENCE OF FACTORS SUCH AS OUTWARD EXPRESSIONS OF HOSTILITY, HARMFUL CONDUCT INCONSISTENT WITH AN EMPLOYER’S LEGITIMATE BUSINESS INTERESTS, A CONTINUATION OF HARMFUL AND ILLEGITIMATE CONDUCT AFTER A COMPLAINANT REQUESTS THAT IT CEASE OR S. 1823–B 3 DISPLAYS OUTWARD SIGNS OF EMOTIONAL OR PHYSICAL DISTRESS IN THE FACE OF THE CONDUCT, OR ATTEMPTS TO EXPLOIT THE COMPLAINANT’S KNOWN PSYCHOLOG ICAL OR PHYSICAL VULNERABILITY. 6. “NEGATIVE EMPLOYMENT DECISION” MEANS A TERMINATION, CONSTRUCTIVE DISCHARGE, DEMOTION, UNFAVORABLE REASSIGNMENT, REFUSAL TO PROMOTE OR DISCIPLINARY ACTION. 7. “PHYSICAL HARM” MEANS THE MATERIAL IMPAIRMENT OF A PERSON’S PHYS ICAL HEALTH OR BODILY INTEGRITY, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL. 8. “PSYCHOLOGICAL HARM” MEANS THE MATERIAL IMPAIRMENT OF A PERSON’S MENTAL HEALTH, AS DOCUMENTED BY A COMPETENT PHYSICIAN OR SUPPORTED BY COMPETENT EXPERT EVIDENCE AT TRIAL.

S 762. ABUSIVE WORK ENVIRONMENT. IT SHALL BE UNLAWFUL TO SUBJECT AN EMPLOYEE TO AN ABUSIVE WORK ENVIRONMENT.

S 763. EMPLOYER LIABILITY. AN EMPLOYER SHALL BE CIVILLY LIABLE FOR THE EXISTENCE OF AN ABUSIVE WORK ENVIRONMENT WITHIN ANY WORKPLACE UNDER ITS CONTROL.

S 764. DEFENSES. 1. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER EXERCISED REASON ABLE CARE TO PREVENT AND PROMPTLY CORRECT THE ABUSIVE CONDUCT WHICH IS THE BASIS OF SUCH CAUSE OF ACTION AND THE PLAINTIFF UNREASONABLY FAILED TO TAKE ADVANTAGE OF THE APPROPRIATE PREVENTIVE OR CORRECTIVE OPPORTU NITIES PROVIDED BY SUCH EMPLOYER. SUCH AFFIRMATIVE DEFENSE SHALL NOT BE AVAILABLE TO AN EMPLOYER WHEN THE ABUSIVE CONDUCT CULMINATES IN A NEGA TIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF. 2. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A CAUSE OF ACTION FOR ABUSIVE WORK ENVIRONMENT, THAT THE EMPLOYER MADE A NEGATIVE EMPLOYMENT DECISION WITH REGARD TO THE PLAINTIFF WHICH IS CONSISTENT WITH SUCH EMPLOYER’S LEGITIMATE BUSINESS INTERESTS, SUCH AS TERMINATION OR DEMOTION BASED ON THE PLAINTIFF’S POOR PERFORMANCE OR THE COMPLAINT IS BASED PRIMARILY UPON THE EMPLOYER’S REASONABLE INVESTIGATION OF POTENTIALLY DANGEROUS, ILLEGAL OR UNETHICAL ACTIVITY.

S 765. RETALIATION. ANY RETALIATORY ACTION AGAINST ANY EMPLOYEE ALLEG ING A VIOLATION OF THIS ARTICLE SHALL BE DEEMED TO BE A RETALIATORY PERSONNEL ACTION AS PROHIBITED BY SECTION SEVEN HUNDRED FORTY OF THIS CHAPTER.

S 766. REMEDIES. 1. WHERE A DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED IN ABUSIVE CONDUCT, OR CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT, THE COURT MAY ENJOIN SUCH DEFENDANT FROM ENGAGING IN SUCH ILLEGAL ACTIV ITY AND MAY ORDER ANY OTHER RELIEF THAT IS APPROPRIATE INCLUDING, BUT NOT LIMITED TO, REINSTATEMENT, REMOVAL OF THE OFFENDING PARTY FROM THE PLAINTIFF’S WORK ENVIRONMENT, REIMBURSEMENT FOR LOST WAGES, MEDICAL EXPENSES, COMPENSATION FOR EMOTIONAL DISTRESS, PUNITIVE DAMAGES AND ATTORNEY FEES. 2. WHERE AN EMPLOYER HAS BEEN FOUND TO HAVE CAUSED OR MAINTAINED AN ABUSIVE WORK ENVIRONMENT THAT DID NOT RESULT IN A NEGATIVE EMPLOYMENT DECISION, SUCH EMPLOYER’S LIABILITY FOR DAMAGES FOR EMOTIONAL DISTRESS SHALL NOT EXCEED TWENTY-FIVE THOUSAND DOLLARS AND SHALL HAVE NO LIABIL ITY FOR PUNITIVE DAMAGES. THE PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY TO ANY EMPLOYEE WHO ENGAGES IN ABUSIVE CONDUCT.

S 767. ENFORCEMENT. 1. THE PROVISIONS OF THIS ARTICLE ARE ENFORCEABLE BY MEANS OF A CIVIL CAUSE OF ACTION COMMENCED BY AN INJURED EMPLOYEE. 2. NOTWITHSTANDING THE PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES, AN ACTION TO ENFORCE THE PROVISIONS OF THIS ARTICLE SHALL BE COMMENCED WITHIN ONE YEAR OF THE LAST ABUSIVE CONDUCT WHICH IS THE BASIS OF THE ALLEGATION OF ABUSIVE WORK ENVIRONMENT. S. 1823–B 4

S 768. EFFECT ON COLLECTIVE BARGAINING AGREEMENTS. THIS ARTICLE SHALL NOT PREVENT, INTERFERE, EXEMPT OR SUPERSEDE ANY CURRENT PROVISIONS OF AN EMPLOYEE’S EXISTING COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE NOR SHALL THIS ARTICLE PREVENT ANY NEW PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT WHICH PROVIDE GREATER RIGHTS AND PROTECTIONS FROM BEING IMPLE MENTED AND APPLICABLE TO SUCH EMPLOYEE WITHIN SUCH COLLECTIVE BARGAINING AGREEMENT. WHERE THE COLLECTIVE BARGAINING AGREEMENT PROVIDES GREATER RIGHTS AND PROTECTIONS THAN PRESCRIBED IN THIS ARTICLE, THE RECOGNIZED COLLECTIVE BARGAINING AGENT MAY OPT TO ACCEPT OR REJECT TO BE COVERED BY THE PROVISIONS OF THIS ARTICLE.

S 769. EFFECT OF OTHER LAWS. 1. NO PROVISION OF THIS ARTICLE SHALL BE DEEMED TO EXEMPT ANY PERSON OR ENTITY FROM ANY LIABILITY, DUTY OR PENAL TY PROVIDED BY ANY OTHER STATE LAW, RULE OR REGULATION. 2. THE REMEDIES OF THIS ARTICLE SHALL BE GRANTED IN ADDITION TO ANY COMPENSATION AVAILABLE PURSUANT TO THE WORKERS’ COMPENSATION LAW; PROVIDED, HOWEVER, THAT NO PERSON WHO HAS COLLECTED WORKERS’ COMPEN SATION BENEFITS FOR CONDITIONS ARISING OUT OF AN ABUSIVE WORK ENVIRON MENT, SHALL BE AUTHORIZED TO COMMENCE A CAUSE OF ACTION PURSUANT TO THIS ARTICLE FOR THE SAME SUCH CONDITIONS.

S 2. This act shall take effect immediately, and shall apply to abusive conduct occurring on or after such date.

Filed Under: STATE, WORKPLACE BULLYING Tagged With: , , , , , , , , ,

TOP 10 REASONS FOR BEING TARGETED

October 5, 2010 by Leave a Comment

1. I remained independent, refused to be controlled. (70%)

2. My competence and reputation were threatening. (67%)

3. The Bully’s personality. (59%)

4. My being liked by co-workers and customers (47%)

5. In retaliation for my reporting unethical or illegal conduct, whistleblowing. (38%)

6. I was focused solely on work and ignored the politics. 36%)

7. Bully had personal problems. (35%)

8. I am nonconfrontative and easily overrun by others. (33%)

9. I was at a time of personal medical or life vulnerability or changes. (30%)

10. I could not afford to leave the job and the bully knew it. (30%)

* From Workplace Bullying Institute (2003)(non-scientific survey of 1,000 volunteer respondents who visited WBI’s web site).

Filed Under: DISPATCHES, WHY ME?, WORKPLACE BULLYING Tagged With: , , , , , , , ,

TIME MAG: NEW LAWS TARGET WORKPLACE BULLYING

October 5, 2010 by Leave a Comment

Wednesday, Jul. 21, 2010


TIME MAGAZINE

Case Study

New Laws Target Workplace Bullying

By Adam Cohen
There are some very important things they don’t tell you on career day. Chief among them is that there is a good chance that at some point during your working adult life you will have an abusive boss — the kind who uses his or her authority to torment subordinates. Bullying bosses scream, often with the goal of humiliating. They write up false evaluations to put good workers’ jobs at risk. Some are serial bullies, targeting one worker and, when he or she is gone, moving on to their next victim.

Bosses may abuse because they have impossibly high standards, are insecure or have not been properly socialized. But some simply enjoy it. Recent brain-scan research has shown that bullies are wired differently. When they see a victim in pain, it triggers parts of their brain associated with pleasure. (See 10 ways your job will change.)

Worker abuse is a widespread problem — in a 2007 Zogby poll, 37% of American adults said they had been bullied at work — and most of it is perfectly legal. Workers who are abused based on their membership in a protected class — race, nationality or religion, among others — can sue under civil rights laws. But the law generally does not protect against plain old viciousness.

That may be about to change. Workers’ rights advocates have been campaigning for years to get states to enact laws against workplace bullying, and in May they scored their biggest victory. The New York state senate passed a bill that would let workers sue for physical, psychological or economic harm due to abusive treatment on the job. If New York’s Healthy Workplace Bill becomes law, workers who can show that they were subjected to hostile conduct — including verbal abuse, threats or work sabotage — could be awarded lost wages, medical expenses, compensation for emotional distress and punitive damages.

Not surprisingly, many employers oppose the bill. They argue that it would lead to frivolous lawsuits and put them at risk for nothing more than running a tight ship and expecting a lot from their workers. But supporters of the law point out that it is crafted to cover only the most offensive and deliberate abuse. The bill requires that wrongful conduct be done with “malice,” and in most cases that it has to be repeated. It also provides affirmative defenses for companies that investigate promptly and address the problem in good faith. (See “When Bullying Goes Criminal.”)

The New York state assembly is expected to take up the bill next year. At least 16 other states are considering similar bills, and some employment-law experts think antibullying legislation may have real momentum now.

Legislatures are not the only ones standing up to bullies. In 2008, the Indiana supreme court struck a blow against workplace bullying when it upheld a $325,000 verdict against a cardiovascular surgeon. A medical technician who operated a heart and lung machine during surgery accused the surgeon of charging at him with clenched fists, screaming and swearing. The formal legal claims were intentional infliction of emotional distress and assault, but the plaintiff argued it as a bullying case, and had an expert on workplace bullying testify at trial.

Ideally, employers should rein in abusive bosses on their own, but that rarely happens. Many bullies are close to powerful people in the organization and carefully target less powerful ones. When John Bolton was nominated to be ambassador to the U.N. by President George W. Bush, a former subordinate told the Senate that Bolton was a “serial abuser” and — in a phrase that has since entered the bullying lexicon — a “kiss-up, kick-down sort of guy.” (See “How Not to Raise a Bully.”)

There are reasons workplace bullying may be getting worse now, including the bad economy. In good times, abused workers can simply walk out on a job if they are being mistreated. But with unemployment at around 9.5%, and five job seekers for every available job, many employees feel they have no choice but to stay put.

Another factor is the decline of organized labor. Unions were once a worker’s front-line defense against an abusive boss. If a supervisor was out of line, the shop steward would talk to him — on behalf of all of the workers. But union membership has fallen from 35% of the workforce in the 1950s to under 13% today, and some unions are less aggressive than they once were. (See what to do if you have a bad boss.)

That leaves litigation. There seems to be a strong constituency for laws allowing workers to sue over workplace abuse. The vote on the Healthy Workplace Bill was bipartisan and not close: New York state senators favored it 45 to 16.

If states enact laws of this kind and lawsuits begin to be filed, juries are far more likely to sympathize with the bullied worker than the bullying boss — and damages awards could be large. There is one easy way for employers to head all of this off: get more serious about rooting out abusive bosses before serious damage is done.

Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board
Read more: http://www.time.com/time/nation/article/0,8599,2005358,00.html#ixzz11RYkRH00

Filed Under: DISPATCHES, WORKPLACE BULLYING Tagged With: , , ,

ILO: U.S.DOMESTIC WORKERS TO GET A DAY OFF?

October 3, 2010 by Leave a Comment

International Labor Organization’s World of Work Magazine

#68 – April 2010

Decent work for domestic workers

NEW YORK – According to the US census there are currently over two million people engaged in domestic service in the United States – a number that is probably a significant underestimate. Overworked, underpaid and, until fairly recently, isolated, domestic workers do not even have the right to organize, clinging to the coat tails of labour federations to see their few rights defended.

The plight of domestic workers caring for the sick and the elderly is of particular concern. According to a recent report by the Alliance for Retired Americans, the American Association for People with Disabilities, and the labour federations AFL-CIO and “Change to Win”, roughly half of all home-care workers work full time year round. They are twice as likely as other workers to receive food stamps and to lack health insurance, while one in five lives below the poverty level.

According to the Service Employees International Union (SEIU), a leading labour organization, 90 per cent of home-care workers are female, and one in four heads a household with children. “These people are engaged in essential work that enables others to go out and make a living,” says Priscilla Gonzalez, director of Domestic Workers United (DWU) a grassroots organization based in New York, “and yet they are denied a living themselves.”

The last time US labour law was changed to expand coverage for domestic workers was in 1974 with the Fair Labor Standards Act (FLSA), but employees providing “companionship services” to the aged and disabled were left out (“exempted” in the language of the document) – deemed too casual and informal for legal protection. Since 1974 the world has changed, and both the numbers of home-care workers and the services they provide have grown, but the law has failed to grow with them.

The last time the FLSA’s so-called domestic worker “exemption” was challenged was in 2007 when the Supreme Court ruled that home health-care workers were not eligible for the overtime and minimum wage protections extended to others. And the domestic worker exemption is but one of a list of similar exclusions. As already mentioned, domestic workers in the United States have no right to organize under the National Labor Relations Act (NLRA). They have no protection under the Occupational Safety and Health Act (OSHA). They have no protection under civil rights laws.

… Last summer fifteen US senators sent an open letter to Labor Secretary Hilda Solis, calling for the repeal of the exemption, and arguing in favour of a national minimum wage and the extension of federal overtime requirements to domestic workers. Solis, the daughter of an immigrant domestic worker herself, has been supportive of the idea of scrapping the exemption, referring to it as a “loophole” which should be closed.

How soon that will happen is anyone’s guess, but domestic workers may not have to wait for Congress to get round to changing the law because change may be coming state by state, starting in New York where a comprehensive Domestic Worker Bill of Rights looks set to pass in the State Senate in the coming month or so. If passed the legislation will grant housekeepers, nannies and caregivers the same rights that the majority of US labour enjoys, notably: time-and-a-half for every hour over 40 hours per week; one day off per 7-day calendar week; a limited number of paid vacation days, holidays, and sick days; advance notice of termination or severance pay in lieu of notice. The bill will also give domestic workers the ability to sue employers where these provisions are not met. The bill has been debated within the State legislature for more than six years, and has already passed in the State Assembly. The State Governor has pledged to sign legislation once it reaches his desk.

“It’s going to put domestic workers on an equal footing with everyone else,” says DWU’s Gonzalez, one of the activists who have been fighting for change for a number of years. “The new laws are also going to send a strong message to the work force about being recognized and protected under the law.” Some domestic workers are already getting the message.

“The Bill of Rights will put an end to decades and decades of exploitation,” says Patricia Francois, a nanny who spent six-and-a-half years looking after the daughter of a wealthy Manhattan couple until she was fired in December of 2008 after an altercation (Francois claims that her employer punched her in the face, a claim the employer disputes).

For Francois the importance of the bill goes beyond any specific rights it may include. “It will give us back our dignity and respect,” she says.

And the bill’s impact will not be limited to New York. Andrea Cristina Mercado, Lead Organizer of Mujeres Unidas y Activas (MUA), a group of San Francisco/Oakland-based activists – says that as a result of the New York campaign, MUA has decided to push for a legislative Bill of Rights campaign in California. “This year we are going to be introducing a resolution in support of domestic workers at the State level and we are hoping that will help us build momentum for a legislative campaign in 2011,” she says. The last time groups like MUA tried to effect change in California was in January 2006 when they managed to get the so-called “Nanny Bill” introduced in the California Assembly.

The bill was passed by the Assembly and the Senate but was then vetoed by the Governor of California. This time Mercado believes things will be different: “In 2006 we were just focused on rights for overtime and fines for abusive employers,” she says. “This time, we will take an approach similar to the one used in New York and will be going for a comprehensive Bill of Rights, an inspiring platform that gets people stirred up.”

And it is not just the approach to campaigning that has changed. The big difference between now and 2006 is that grass-roots domestic labour movements in the United States have become organized. Domestic workers may be banned from forming a union, but there is nothing to stop cooperatives and associations coming together to exchange information and develop strategy. And this is exactly what they have been doing, beginning in June of 2007 when a small group of domestic workers came together at a National Domestic Worker Gathering in Atlanta, Georgia. On the last day of the gathering the participants took the decision to form a National Domestic Worker Alliance (NDWA) to give domestic workers a voice and to draw attention to their plight. “There were all these local campaigns and initiatives going on, but we wanted to create a coherent whole – and not to have to reinvent the wheel each time,” says NDWA lead organizer Jill Shenker.

The basic idea behind the NDWA was that domestic workers in one state could learn lessons from their counterparts in another; the Domestic Worker Bill of Rights is the first indication of how powerful that approach can be. “The California coalition has been inspired by what their sisters in New York have achieved,” says Shenker, reporting that a comprehensive bill called the California Domestic Worker Bill of Rights (CDWBR) has already been drawn up. The NDWA has also provided the participants with a sense of connection and of course empowerment. “We are not just about tinkering with the labour code,” says Shenker. “What we’re trying to do is build a social movement.”

… Founded by 13 organizations, the NDWA now comprises over 30, and it is only a matter of time before other states, notably Colorado, Illinois, Iowa, Maryland, New Hampshire, Oregon, Rhode Island and Washington pick up the Bill of Rights idea. “We’re really excited about what’s coming down the pipeline,” says DWU’s Gonzalez. “Everyone is watching what is happening in Albany.” Soon they’ll be watching what happens in California.

Filed Under: DISPATCHES Tagged With: , , , Assorted Articles, , , domestic worker, International Labor Organization