Analysis Law and Policy

Domestic Workers Rights Movement Picking Up Steam Despite Recent California Defeat

Sheila Bapat

Legal protections for domestic workers have historically been weak. But despite a major loss in California at the hands of Governor Jerry Brown, the domestic workers' rights movement and its supporters feel the tide may be turning in their favor.

On Tuesday, the Ford Foundation hosted a special launch event in New York introducing a new report detailing the plight of domestic workers in the United States. The report, entitled Home Economics: the Invisible and Unregulated World of Domestic Work, paints a bleak picture about the lives of nannies, home health aides, and housekeepers who toil in American homes. A survey of more than 2,000 domestic workers in 14 metropolitan areas reveals that 67 percent earn less than minimum wage and 25 percent had not had at least five hours of uninterrupted sleep in the prior week. Moreover, the survey found abuse of domestic workers is rampant—though most surveyed were too afraid to speak up about it.

The report, the well-attended Ford Foundation launch event, and support from policymakers indicate that the movement for domestic workers’ rights remains vigilant— even after recently suffering a defeat in California that left organizers reeling. On September 30th, California Governor Jerry Brown vetoed AB 889, a Domestic Workers Bill of Rights, that would have required over-time pay, adequate sleeping conditions for live-in workers, and both meal and rest breaks.

The National Domestic Workers Alliance (NDWA) and other organizations have made state bill of rights legislation part of their overall strategy because, as NDWA Director Ai-jen Poo told Rewire, creating enforceable baseline standards for how domestic workers can be treated is a major part of empowering domestic workers, adding dignity to their work, and ending the abuse that goes on in their invisible and unregulated world. New York became the first state to pass a domestic workers’ bill of rights in 2010—a major victory—and the movement has also made inroads with the Obama administration and the International Labour Organisation (ILO). 

AB889 was California’s second try at passing this legislation—Governor Arnold Schwarzenegger vetoed the same legislation in 2006. Rewire emailed a key sponsor of AB 889, California Assemblyman Tom Ammiano, yesterday to discuss Gov. Brown’s surprising veto. It is clear that Ammiano remains just as vigilant as the NDWA and other organizations at passing this legislation in California and in other states. 

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“[Passing this legislation] is not only possible. It is necessary,” Ammiano wrote in his email. “We’re talking about one of the few groups of people left largely unprotected in the workplace. History is on the side of those working for labor rights and that’s what we’re doing. I plan to bring another Domestic Workers Bill of Rights to the Governor and I will work with our supporters to make sure it is one that truly protects them and answers all the Governor’s questions.”

Like NDWA, Asm. Ammiano was surprised at the progressive governor’s decision to reject the bill, particularly given that the questions raised in Brown’s veto message (including concerns about a drafting error as well as questions about how the legislation could hurt families who hire domestic workers) could have been ironed out in the regulatory process.

In reflecting on the veto, Ammiano said:

We spent a lot of effort over two years—in committee hearings and through stakeholder meetings—answering many of the questions he asked in his veto message. We even managed to negotiate changes that swayed disability rights groups to go from hardline opponents to supporters. We thought, and we still think, we did the work to give him a bill that deserved to be signed.

Domestic workers have historically been excluded from major New Deal-era labor legislation including the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA). Amendments to the FLSA in 1974 did extend over-time and minimum wage provisions to some domestic workers, but continued to exclude home caregivers, live-in domestic workers and nannies—all of which make up a huge share of the domestic workers in the United States. 

As recently as 2007, the Supreme Court held in Long Island Care at Home, Ltd. v. Coke that a domestic worker who labored three consecutive 24-hour shifts, and regularly worked 70 hours a week for seven dollars an hour, was not entitled to overtime pay.

Legal protections for domestic workers have historically been weak or nonexistent. The domestic workers’ rights movement and its supporters like Asm. Ammiano may indicate that the tide is turning. 

Analysis Law and Policy

California Bill Aimed at Anti-Choice Videos Draws Free Speech Concerns

Amy Littlefield

“We wanted to make sure that we updated ... laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” California Assemblymember Jimmy Gomez said, adding that his legislation would also protect patient safety and access to abortion.

A California bill that would make it a crime to distribute secret recordings of health-care providers—like the ones David Daleiden used in his smear campaign against Planned Parenthood—has cleared a legislative hurdle, but faces opposition from media groups and civil liberties advocates, who say the legislation is overly broad.

It is already illegal in California to record, whether in audio or video form, a confidential communication without the consent of all parties involved. But California Assemblymember Jimmy Gomez, who introduced AB 1671, told Rewire that while current law specifically forbids the distribution of illegally recorded telephone calls, there is no similar protection for videos.

“We wanted to make sure that we updated those laws to kind of reflect a changing world and to make sure that we actually protect the doctors who provide these important services to women,” Gomez said, adding that his legislation would also protect patient safety and access to abortion.

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AB 1671 makes it a crime if someone who violates California’s existing law against secret recordings “intentionally discloses or distributes, in any manner, in any forum, including, but not limited to, Internet [websites] and social media, or for any purpose, the contents of a confidential communication with a health care provider that is obtained by that person.”

Violators could be jailed for up to a year and fined up to $2,500, penalties similar to those already in place for making illegal recordings. But the new measure specifies that for both recording and distribution, the fines apply to each violation; that means someone like Daleiden, who circulated his videos widely, could quickly rack up heavy fines. Repeat offenders could face fines of up to $10,000 per violation.

The effort to pass the bill comes as abortion providers face a rising tide of threats and secret recordings. Besides Daleiden’s efforts, covertly recorded footage of clinic staff has cropped up in the documentary HUSH and in videos released by the anti-choice group Live Action. Planned Parenthood reported a ninefold increase in harassment at its health centers in July last year, when Daleiden began releasing the deceptively edited videos he claimed showed the organization was illegally profiting from fetal tissue donation. (Multiple federal and state investigations have found no wrongdoing by Planned Parenthood.) The National Abortion Federation recorded an “unprecedented” spike in hate speech and threats against abortion providers last year, peaking with the fatal shooting of three people at a Colorado Springs Planned Parenthood.

Increased Threats

“It was so alarming and so extensive that our staff that normally tracks threats and violence against providers could not keep up,” NAF President and CEO Vicki Saporta told Rewire. The organization was forced to hire an outside security firm.

Beth Parker, chief legal counsel for Planned Parenthood Affiliates of California, told Rewire the new legislation is needed to protect the safety of abortion providers.

“If our providers aren’t safe, then they won’t provide, and we won’t have access to reproductive health care,” Parker said in a phone interview.

Daleiden’s group, the Center for Medical Progress, is based in California, and much of his covert recording took place there. Of the four lawsuits he and his group face over the recordings, three have been filed in federal court in California. Yet so far, the only criminal charges against Daleiden have been lodged in Texas, where a grand jury tasked with investigating Planned Parenthood instead indicted Daleiden and fellow anti-choice activist Sandra Merritt for purportedly using fake California driver’s licenses as part of their covert operation. The charges were later dropped for procedural reasons.

Last summer, California Attorney General Kamala Harris announced plans to review whether the Center for Medical Progress violated any laws, and in April, state investigators raided Daleiden’s apartment. Harris has not yet announced any charges. Daleiden has accused officials of seizing privileged information, a claim the attorney general’s office told Rewire it is working on resolving in court.

Harris, meanwhile is running for Senate; her campaign website describes her as “a champion for a woman’s right to choose.”

“We think there is an excellent case and the attorney general should have prosecuted,” Beth Parker of Planned Parenthood Affiliates of California told Rewire. “Daleiden did more than just publish the videos, as we know, I mean he falsified driver’s licenses, he falsified credit cards, he set up a fake company. I mean, we have, as you know, a major civil litigation against him and his conspirators. I just can’t answer to why the attorney general hasn’t prosecuted.”

Parker said AB 1671 could increase incentives for law enforcement to prosecute such cases.

“What we’ve heard as we’ve been working [on] the bill is that criminal law enforcement almost never prosecutes for the violation of illegal recording,” Parker said. “It’s just too small a crime in their view.”

Assemblymember Gomez also said he hopes his bill will facilitate the prosecution of people like Daleiden, and serve as a deterrent against people who want to use illegal recordings to “undermine the fact that people have this right to have control over their bodies.”

“That’s the hope, is that it actually does change that landscape, that DAs will be able to make a better case against individuals who illegally record and distribute,” Gomez said.

Vicki Saporta of the National Abortion Federation says the actions of law enforcement matter when it comes to the safety of abortion providers.

“There’s certainly a correlation between law enforcement’s response to criminal activity aimed at abortion providers and the escalation or de-escalation of that activity,” Saporta said, citing the federal government’s response to the murders of abortion providers in the 1990s, which included the deployment of federal marshals to guard providers and the formation of a task force by then-Attorney General Janet Reno. “We had more than a decade of decreases in extreme violence aimed at abortion providers, and that ended in 2009 with the murder of Dr. [George] Tiller.”

But media and civil liberties groups, including the Electronic Frontier Foundation and American Civil Liberties Union of California, have expressed concerns the bill could sweep up journalists and whistleblowers.

“The passing of this law is meant to chill speech, right, so that’s what they want to do,” Nikki Moore, legal counsel of the California Newspaper Publishers Association, which opposes the legislation, said in an interview with Rewire. In addition to potential criminal penalties, the measure would create new civil liabilities that Moore says could make journalists hesitant to publish sensitive information.  

“A news organization is going to look at it and say, ‘Are we going to get sued for this? Well, there’s a potential, so we probably shouldn’t distribute it,’” Moore said.

As an example of the kind of journalism that could be affected by the bill, Moore cited a Los Angeles Times investigation that analyzed and helped debunk Daleiden’s footage.

“Planned Parenthood’s bill would criminalize that behavior, so it’s short-sighted of them if nothing else,” Moore said.

Assemblymember Gomez disagrees about the scope of the bill. “We have tailored it narrowly to basically say it applies to the person who illegally recorded the video and also is distributing that video, so it doesn’t apply to, say, a news agency that actually ends up getting the video,” he said.

Late last week, the California Senate Appropriations Committee released AB 1671 to the state senate floor on a vote of 5 to 2, with Republicans opposing it. The latest version has been amended to remove language that implicated “a person who aids and abets” the distribution of secret recordings, wording civil liberties groups said could be used to sweep in journalists and lawyers. The latest draft also makes an exception for recordings provided solely to law enforcement for investigations.

But the ACLU of California and the California Newspaper Publishers Association said they still oppose the bill. (The Electronic Frontier Foundation said it is still reviewing the changes.)

“The likelihood of a news organization being charged for aiding and abetting is certainly reduced” under the new language, Moore said. But provisions already exist in the California penal code to implicate those accused of aiding and abetting criminal behavior.

“You can imagine scenarios where perhaps the newspaper published it and it’s an anonymous source, and so now they’re aiding and abetting the distribution, and they’re the only person that the prosecutor knows might have been involved,” Moore says.

In letter of opposition sent in June to Assemblymember Gomez, Kevin Baker, legislative director of the ACLU of California, raised concerns about how the measure singles out the communications of health-care providers.

“The same rationale for punishing communications of some preferred professions/industries could as easily be applied to other communications —e.g., by law enforcement, animal testing labs, gun makers, lethal injection drug producers, the petroleum industry, religious sects,” Baker wrote.

Gomez said there could be further changes to the bill as talks aimed at resolving such opposition continue. An earlier version passed the assembly easily by a vote of 52 to 26. The latest draft faces an August 31 deadline to pass the senate and a concurrence vote in the assembly before the end of the session. After that, Gomez said he hopes California Gov. Jerry Brown (D) will sign it.

“If we can strike the right balance [between the rights of privacy and free speech], my hope is that it’s hard for him not to support it,” Gomez said. 

News Law and Policy

California Lawmakers Take Action Against Rampant Wage Theft

Nicole Knight

A survey of people who work for low wages found that wage theft robbed workers of $26.2 million each week in Los Angeles, making the locale the "wage theft capital of the country."

Los Angeles has earned the distinction as the country’s wage theft capital, but a new California law is tackling the rampant problem of wage theft with new enforcement tools.

The law, SB 1342, signed last month by Gov. Jerry Brown (D), gives city and county authorities subpoena powers when investigating wage violations. Until now, the state Division of Labor Standards Enforcement was the primary agency charged with investigating wage theft cases.

State Sen. Tony Mendoza (D-Artesia) authored the legislation to “ensure that our low-wage workers, who already face many challenges, receive the pay that they have earned,” Mendoza wrote in an Orange County Breeze op-ed.

Wage theft is the illegal practice of failing to pay overtime and minimum wages, denying lunch breaks, or forcing employees to work off the clock. A survey of people who work for low wages by the UCLA Institute for Research on Labor and Employment found that wage theft robbed workers of $26.2 million each week in Los Angeles, making the locale the “wage theft capital of the country.”

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Some 654,914 workers in L.A. County are subjected to at least one pay-based violation in any given week, researchers noted.

Most people who work low-wage jobs in L.A. were born outside the United States, and the majority are Latino (73.4 percent), Asian (17.9 percent), or Black (6.3 percent), researchers found.

Wage theft is not only illegal, it contributes to food insecurity and housing instability in low-income families, Mendoza noted.

“This bill protects hard-working Californians by clarifying the ability of cities and counties to investigate non-compliance with local wage laws,” Mendoza said.

A legislative analysis of SB 1342 cited research noting that minimum wage violations are rampant in industries such as garment manufacturing, domestic service, building services, and department stores, where wages are low.

The measure comes as states and cities are increasing minimum wages as lawmakers in Congress have refused to consider raising the federal minimum wage of $7.25.

Brown in April signed a law lifting the statewide minimum pay rate to $15 per hour by 2022. More than a dozen cities, including Los Angeles, San Francisco, and Seattle, have proposed or enacted $15 minimum wage rates, according to the National Employment Law Project.

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