Analysis Law and Policy

In California, Growing Support For Domestic Workers’ Rights Met By Enforcement and Political Challenges

Sheila Bapat

While laws may not be sufficient on their own -- laws never mean much without the advocates who ensure their enforcement -- they are a necessary step in improving the labor conditions of domestic workers.

Just in time for Labor Day, the California State Senate last Wednesday passed the Domestic Workers Bill of Rights, AB 889, a law requiring protections for California’s 200,000 domestic workers including overtime pay, adequate sleeping conditions for live-in workers, and meal and rest breaks. California is now the second state in the country to pass such legislation. In perfect blue-state fashion, New York was the first, having passed its domestic workers bill of rights in 2010.

Domestic workers are mostly immigrant women who labor as nannies, housekeepers, and caregivers in private homes, but they have not been adequately protected by existing labor laws. The victories in California and New York are part of a growing movement on behalf of domestic workers’ rights that has also gained traction within the Obama Administration. But challenges loom: advocates must now work to ensure enforcement of the new protections. And come November, a change in administration could set back some of the progress made at the federal level.

“Our work doesn’t end when the law passes,” said Andrea Mercado, Director of the California Domestic Workers Bill of Rights Campaign and community organizer for Mujeres Unidas y Activas, an economic justice advocacy group. “We need to focus on the law’s regulation making process and spread the word among employers and domestic workers to make sure they know their rights.”

When I chatted with Mercado last Wednesday, she was in a van headed to California’s state capitol alongside domestic workers to make one final advocacy push as the state Senate voted on the bill. This bill has been inching its way through the state legislature since it was first introduced February 2011, but Mercado, the National Domestic Workers Alliance (NDWA), and many other organizations representing domestic workers have been part of the movement to pass this law over the last several years. In that time, support for for domestic workers rights has grown dramatically, even seeping into Hollywood: recently actor and comedian Amy Poehler created a video in support of the California Domestic Workers Bill of Rights. More state laws may not be far behind: Massachusetts, Washington, Hawaii, and Illinois are all poised to launch domestic workers’ rights campaigns.

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Now that California’s law has passed (California Governor Jerry Brown is being lobbied to sign the bill, though he technically doesn’t have to in order for it to take effect), California’s Department of Industrial Relations will issue regulations offering specifics about what the protections will mean for domestic workers. Regulations will be completed and effective January 1, 2014.

New York’s law has brought to light the challenges of enforcing domestic worker protections. Homes are not factories through which an inspector can easily traipse to ensure standards are up to par, and even with protections in place domestic workers may choose not to raise their voices for fear of losing their jobs. Writer Sharon Lerner pointed out in The Nation recently that, as of February 2012, only five complaints filed by domestic workers under the New York statute had been brought to resolution.

While laws may not be sufficient on their own–laws never mean much without the advocates who ensure their enforcement–they are a necessary step in improving the labor conditions of domestic workers. One New York domestic worker who filed a complaint with the New York Department of Labor did receive a $100,000 award in back-wages and penalties.

“The laws in New York and California provide a foundation to build upon, and they open up public imagination for this idea that domestic workers are real workers who should have rights in the workplace,” said Ai-jen Poo, Director of the National Domestic Workers Alliance.

“What we were able to do through the New York and California campaigns and legislation is establish the baseline, minimum standards for this population. And we’ve been building upon it by encouraging workers to come out of shadows and report incidents of abuse and violations.”

Among the groups active in passing the California law are legal advocacy organizations that actually represent domestic workers in their dealing with employers as well as in filing complaints under the new law. The Golden Gate University Women’s Employment Rights Clinic has been a force in advocating for AB 889. The clinic now plans to be involved in the regulatory process, and will continue to represent domestic workers as well as create educational materials explaining the law for domestic workers and their employers.

At the federal level, President Obama vocalized his support for domestic workers rights early in his 2008 campaign. Since then, organizers have been in talks with Department of Labor (DOL) Secretary Hilda Solis about revising federal labor regulations pertaining to domestic workers. Thus far DOL has revised regulations pertaining to caregivers for the elderly, but these regulations need to be taken up by the Office of Management and Budget before they can go into effect.

Advocates fear this federal regulatory progress would be erased by a change in administration and or a shift in the makeup of the House and Senate. A major aspect of the Republican platform, apparent in last week’s Republican National Convention, is to reduce regulations. Republicans argue that such regulations can stifle job creation. Prominent Republicans have already opposed protections for domestic workers; California Governor Arnold Schwarzenegger vetoed a domestic workers bill that came to his desk in 2006.

Despite the hurdles, Poo sees the California victory and the movement overall as an opportunity to engage with domestic workers and build awareness about their rights. And it’s an opportunity to connect with the families that employ domestic workers who, she says, really want to do the right thing.

News Law and Policy

Lawsuit Challenges Anti-Choice Laws Passed by Louisiana Lawmakers

Teddy Wilson

The lawsuit comes in the wake of the U.S. Supreme Court’s landmark decision that struck down two provisions of Texas’ omnibus anti-choice law known as HB 2.

The Center for Reproductive Rights filed a lawsuit Friday in federal district court challenging abortion restrictions passed by Louisiana lawmakers this year.

Despite facing a budget crisis, lawmakers passed seven laws that restricted access to reproductive health care, including abortion services, which the Center for Reproductive Rights claims “individually, and cumulatively” unduly restrict the “constitutional right to abortion.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement that the laws collectively create a “web of red tape” that restrict women’s ability to access reproductive health care.

“Louisiana politicians are trying to do what the U.S. Supreme Court just ruled decisively they cannot, burying women’s right to safe and legal abortion under an avalanche of unjustified and burdensome restrictions,” Northup said.

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The lawsuit comes in the wake of the U.S. Supreme Court’s landmark decision that struck down two provisions of Texas’ omnibus anti-choice law known as HB 2.

Stephen Griffin, a constitutional law professor at Tulane University, told the Times-Picayune that the Supreme Court’s ruling on HB 2 was a “strong rebuke” of the Fifth Circuit Court of Appeals that upheld the law.

“I think the Louisiana law and any similar laws are going to be struck down,” Griffin said. “[Justice Ruth Bader] Ginsburg filed a reminder to courts that the five-member majority is going to be looking very skeptically at targeted regulation of abortion providers.”

Among the laws challenged is a law similar to Texas’ HB 2.

HB 488 requires that physicians providing abortion care be licensed to practice medicine in Louisiana and that they be board-certified or board-eligible in obstetrics and gynecology or family medicine. Previously, the law required that a physician be licensed to practice medicine in Louisiana and be currently enrolled in or have completed a residency in obstetrics and gynecology or family medicine.

The bill was sponsored by Rep. Katrina Jackson (D-Monroe), who in 2014 authored the state’s Texas-style admitting privileges law. The law is the subject of another Center for Reproductive Rights lawsuit, and is currently blocked by a Supreme Court decision.

Ben Clapper, executive director of Louisiana Right to Life, told the Times-Picayune that the Supreme Court’s ruling on HB 2 “does not predict a favorable forecast” for a similar law passed in Louisiana.

“The sad thing here as we see it is that these judges are replacing the elected officials and the legislative process as the determiner of what is medically important or not,” Clapper said. “We don’t believe that’s how it should be.”

Among the other laws challenged include those that restrict abortion procedures, require a waiting period before an abortion, impose restrictions on the handling of fetal tissue, and ban public funding for organizations that provide abortion services.

HB 1081 targets a procedure known as dilation and evacuation (D and E), which is frequently used during second-trimester abortions. A growing number of states have passed laws to ban the procedure, while state courts have blocked such measures passed by GOP lawmakers in Oklahoma and Kansas.

HB 386 tripled the state’s waiting period for a pregnant patient seeking an abortion from 24 hours to 72 hours.

HB 1019 prohibits a person from intentionally performing or attempting to perform an abortion with knowledge that the pregnant patient is seeking the abortion solely because the “unborn child” has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality.

HB 815 prohibits the buying, selling, and any other transfer of the “intact body of a human embryo or fetus” obtained from an induced abortion. The law also prohibits the buying, selling, and any other transfer of “organs, tissues, or cells obtained from a human embryo or fetus whose death was knowingly caused by an induced abortion.”

In addition, it “require[s] burial or cremation of remains resulting from abortion,” which acts as a de facto medication abortion ban, since an embryo miscarried at home, through medication abortion, cannot in practice be buried or cremated.

SB 33, similar to HB 815, prohibits the sale, receipt, and transport of fetal organs and body parts obtained from an induced abortion. Any person who violates this provision would be sentenced to a term of imprisonment at hard labor between ten to 50 years, at least ten years of which must be served without benefit of probation or suspension of sentence, and may, in addition, be required to pay a fine of not more than $50,000.

HB 606 prohibits entities that perform abortions from receiving public funding, unless the abortion was necessary to save the life of the pregnant patient, the pregnancy was a result of incest or rape, or the pregnancy was diagnosed as “medically futile.”

Most of the bills were passed with significant bipartisan support, and were signed into law by Gov. John Bel Edwards (D). Each of the laws is set to take effect on August 1. 

”We are asking the district court to immediately block these unconstitutional laws,” Northup said.

News Law and Policy

Oakland Could Outlaw False Advertising by Crisis Pregnancy Centers

Nicole Knight Shine

California already requires CPCs to post information about free or low-cost abortion care or contraception in their facilities. The proposed ordinance would penalize licensed and unlicensed "limited service pregnancy centers" for making untrue or misleading statements in ads, online, and in publications.

Elected leaders in Oakland, California, want to crack down on crisis pregnancy centers (CPCs) with a truth-in-advertising ordinance.

A panel of some members of the city council on Tuesday took up the proposed measure during a Life Enrichment Committee meeting, arguing that many of these religiously run centers target pregnant people with deceptive billboards, websites, and search engine results for “abortion.”

California already requires CPCs to post information about free or low-cost abortion care or contraception in their facilities. The proposed ordinance would penalize licensed and unlicensed “limited service pregnancy centers” for making untrue or misleading statements in ads, online, and in publications. The ordinance also applies to statements of omission, meaning the withholding of information. Violators would be given ten days to take corrective action by the city attorney, and could face civil fines from $50 to $500. Penalties also include running new ads to correct deceptive ones.

“Crisis pregnancy centers put their ideological agenda ahead of women’s health,” Oakland Vice Mayor Annie Campbell Washington told those gathered in chambers. “They target what they call ‘abortion-minded women’ with deceptive advertising, implying they offer abortion services or referrals.”

Campbell Washington said the new “consumer protection measure” was necessary because individuals who go to CPCs are “being lied to.”

Baltimore, Maryland, was the first city in the nation to enact a similar truth-in-advertising ordinance, which has been blocked amid a court challenge. In 2011, San Francisco passed a similar ordinance. It prevailed after a protracted court battle, when a district judge said the First Amendment does not protect false and misleading commercial speech.

During public comments, Christina Malin, director of family health services for Alameda County Public Health Department, expressed support for the ordinance, noting that CPCs inflict harm by targeting low-income communities of color in particular. She described receiving a voicemail message from a CPC worker asking for help with an undocumented client with a high-risk pregnancy. Malin never learned what happened to the patient.

Malin also noted that county prenatal clinics had observed a tendency by CPCs to refer their clients to county facilities for medical care once the client reached about 24 weeks of pregnancy, when the individual “can no longer terminate easily” and abortion care, while lawful, is more expensive. These former CPC clients, Malin added, arrive without records of appropriate prenatal medical care, such as lab work.

Campbell Washington noted that CPCs are difficult for clients to vet on their own because a facility will frequently change its name.

Rewire found, for example, the state has licensed the CPC Third Box Pregnancy Clinic to operate at 400 30th Street #401 in Oakland under the legal name First Resort. But online and in Yelp reviews the facility at 400 30th Street #401 is called Support Circle Pregnancy Clinic.

First Resort, as it turns out, is the same religiously run nonprofit that challenged the San Francisco ordinance, as the San Francisco Chronicle reported. In its print and online ads in San Francisco, First Resort claimed to offer “abortion information, resources and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion,” although it did not refer clients to abortion providers or provide abortion care.

On Tuesday, Amy Everitt, state director of the advocacy group NARAL Pro-Choice California, showed those gathered in chambers how a Google search for “Oakland” and “abortion” produced results with three clinics, two of which were CPCs. She noted that a 2015 NARAL investigation found that 91 percent of CPCs in the report dispensed false information.

Google has said it would correct its inaccurate search results.

The measure now heads to the full Oakland City Council after unanimously clearing the Life Enrichment Committee.

The ordinance comes amid reports in Sacramento and Los Angeles of CPCs flouting the new state law requiring pregnancy-related centers, including CPCs, to post a brief notice about access to free and low-cost abortion care and contraception.

The Los Angeles City Attorney recently announced that his office would begin cracking down on violators of the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, as Rewire reported. But some jurisdictions have chosen not to enforce the law while five lawsuits against the FACT Act are pending.

Officials running CPCs contend they’d rather close than comply, and say in court filings the law violates their First Amendment rights.

Alliance Defending Freedom Senior Counsel Matt Bowman, who is representing the National Institute of Family and Life Advocates in challenging the FACT Act, said in a statement earlier this month thatforcing [the centers] to promote abortion and recite the government’s messages is a clear violation of their constitutionally protected First Amendment freedoms.”