Analysis Law and Policy

Local Advocates, New Labor Secretary Both Critical to Domestic Workers’ Movement

Sheila Bapat

Scrappy advocates representing domestic workers throughout the country may be realizing victories of even deeper significance than a person holding a politically-appointed position ever could.

The shuffling of cabinet members taking place in the Obama Administration will include a new Secretary of Labor, and Colorado Lt. Governor Joe Garcia’s name has recently been floated as a possible nominee. A critical labor issue gaining momentum that the next Labor Secretary will need to focus on is the treatment of domestic workers under labor laws. Gov. Garcia, a former university president, has an extensive background in education policy but there is little to no evidence of how he would lean on issues relevant to domestic workers or other vulnerable workers (Gov. Garcia could not be reached for comment for this piece).

Domestic workers are typically foreign-born women who toil in private homes as nannies, caregivers, and housekeepers but often don’t earn even a minimum wage. The surge of U.S. advocacy for domestic workers’ rights over the last several years has engaged many diverse actors—from community organizers who live and work alongside domestic workers, to the highest leadership in federal government—all of whom are “in motion around a shared vision,” as National Domestic Workers Alliance Director Ai-jen Poo once told me.

Former Labor Secretary Hilda Solis, who resigned her post in January after serving four years, played a role in the movement, as she prioritized some of the most vulnerable workers in the United States. Solis pushed for minimum wage and overtime pay for domestic workers. Domestic workers have historically been excluded from the Fair Labor Standards Act (which guarantees most other workers minimum wage and overtime), and from a host of other labor laws. Solis’s efforts were critical and whoever fills her shoes will hopefully carry on her commitment.

While we wait for a new Secretary of Labor to take the reins, scrappy advocates representing domestic workers throughout the country may be realizing victories of even deeper significance than a person holding a politically-appointed position ever could. California Attorney Rocio Avila is a perfect example of this. Ever since Avila graduated law school nearly seven years ago, she has been representing domestic workers in Northern California in their civil suits against employers. Her clients—workers who toil in private homes cleaning, cooking and caring for children and elders—have typically been denied the wages promised to them or even the legally-mandated minimum wage. In the more egregious cases, her clients are human trafficking victims who have been physically or emotionally abused. She is a deeply committed litigator, having represented countless workers.

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In 2011, Avila secured a trafficked domestic worker a settlement of over $600,000. In Canal v. Dann, the Northern District of California ruled in favor of plaintiff Zoraida Pena Canal, a domestic worker who was trafficked into the United States in 2006 to live with and work for a Walnut Creek family. Pena Canal worked 6 am to 10 pm each day caring for two children and doing chores. For all those years of work, was only paid once: a single check for $100.

Pena Canal’s employer was sentenced to 60 months in jail, and the Northern District also ruled in favor of Pena Canal in her civil suit. Though under California law some domestic workers are entitled to overtime pay, the state’s labor code still excludes many caregivers from the right to overtime pay unless the worker can demonstrate that they are not just a personal attendant but also take on general domestic labor—such as housekeeping and cooking. In her argument Avila urged the court to view her client’s case as a non-personal attendant case and as a result, her client was awarded compensatory damages that include overtime pay.

Not only did the Northern District of California determine she is a non-personal attendant and therefore entitled to overtime, but they also determined that her overtime pay should be based on the prevailing market wage of $23.70 per hour. Typically, the courts will order payment of overtime based on the state’s minimum wage—which in California is $8.00 per hour. In sum, Pena Canal’s compensatory damages (including unpaid overtime) came to over $340,000. An additional nearly $300,000 was ordered for restitution, emotional distress, and other damages.

“The process of convincing the court of the above was in and of itself a product of community lawyering and grassroots advocacy at its best,” Avila told Rewire. “There is no way we could have prevailed if weren’t for the groundbreaking work of the many individuals behind the domestic worker movement both in New York and in California, which I used as my experts to educate the court and advocate for dignity for my client.

Avila and her colleagues are working hard to overcome a legal disparity that never should have existed in the first place. Federal regulations that guarantee overtime—at the prevailing market wage, not just minimum wage—for domestic workers would help create consistent standards for all domestic workers, whereas district court cases can always be undercut by a circuit split. As it stands, there are no federal regulations that address this issue — Solis made headway on revising regulations to ensure that more domestic workers would be eligible for overtime, but these regs are still being considered by the White House.

The precedent that Avila’s advocacy set is certainly far ahead of federal and state regulations, as there has not been any discussion of domestic workers earning overtime at a prevailing wage. Regardless of who fills Solis’s shoes, the domestic workers’ movement will be pushing him, or her, for deeper change.

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