Analysis Law and Policy

Hawaii Passes Domestic Workers’ Legislation, Mirrors New York’s in Substance

Sheila Bapat

Though substantively similar, the two states' laws arrived at and passed their state legislatures in vastly different ways.

Correction: A version of this article incorrectly listed the name of Oregon’s bill as HB 2627. It is HB 2672. We regret the error.

On April 30, just in time for May Day, Hawaii’s state house and senate passed a domestic workers’ bill of rights. Hawaii Gov. Neil Abercrombie is highly likely to sign the legislation, evidenced by Hawaii First Lady Nancie Caraway’s letter of support for the legislation in senate testimony. Hawaii is thus poised to enact the nation’s second domestic workers’ bill of rights, establishing wage protections, overtime, rest breaks, and protection from abuse and harassment. The first such bill passed in New York in 2010.

But New York and Hawaii’s laws were passed in vastly different ways. New York’s law was the product of nearly a decade of grassroots organizing, movement building, and lobbying by domestic workers, while Hawaii’s law was pushed through in just a few years, driven by state legislators who are interested in supporting the national movement for domestic workers’ rights.

“Our feeling is that if six or seven states pass domestic workers’ legislation like this, we can be successful at the federal level in implementing reforms to the National Labor Relations Act and other legislation that excludes domestic workers,” said state Rep. Roy Takumi (D-Pearl City), who sponsored Hawaii’s legislation (S.B 535) and has been a key champion of domestic workers’ rights in the state.

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Several other states have domestic workers’ bills pending; among them are California, where domestic workers’ legislation has twice been vetoed, Massachusetts, and Illinois. Meanwhile, on Tuesday, Oregon’s House of Representatives passed HB 2672, which provides overtime protections and guaranteed sleep for nannies and housekeepers; this bill now heads to the Oregon state senate.

Hawaii’s legislation will add domestic workers—mostly immigrant women who work as nannies, housekeepers, and caregivers in private homes—to the state’s wage and hour laws and establish minimum working hours and protection from abuse and harassment on the job. A 2012 survey of more than 2,000 domestic workers in 14 metropolitan areas revealed 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. The survey found that abuse of domestic workers is rampant, but most workers surveyed were too afraid to speak up about it.

Takumi decided to work on a Hawaii domestic workers’ bill of rights four years ago, after hearing National Domestic Workers’ Alliance director Ai-jen Poo speak at a Progressive States Network conference about how domestic workers have historically been excluded from all major labor protections, leaving them vulnerable to wage theft and exploitation. Takumi first introduced the legislation in 2011, but it failed to pass the state’s labor and economic development committee.

This year, Hawaii’s domestic workers’ legislation emerged from the Hawaii women’s legislative caucus, a bipartisan group that focuses on women’s issues. “This bill resonated because of the women’s caucus’ long history at opposing all forms of discrimination, fighting for protections for women in the workplace, and the overall commitment to civil rights,” state Rep. Della Au Belatti (D-Makiki-Tantalus) told Rewire. With this added support, as well as leadership changes in the labor, economic development, and judiciary committees, the law passed through the Hawaii legislature with ease.

The saga of New York’s law is far different. In New York, a state teeming with immigrant and low-wage workers and over 200,000 domestic workers, activists began organizing as early as 2003, first passing city-level legislation, then developing a complex statewide strategy. Busloads of domestic workers, union organizers, and allies traveled to the state’s capitol dozens of times to meet with legislators. The National Domestic Workers’ Alliance spent years building deep alliances with the Jewish community, mainstream labor groups, and other community partners.

Substantively, however, New York and Hawaii’s laws are very similar and are primarily geared toward wage protections, overtime days of rest, weekly work hour limits, and protection from harassment and abuse on the job.

It’s important to note that neither New York’s nor Hawaii’s law protects domestic workers from discrimination in hiring and firing. Takumi originally authored the bill to protect domestic workers from firing based on gender, race, religion, sexual orientation, and other protected classifications, but toward the end of hearings on the bill, religious groups in the state, including the Church State Council and the North American Religious Liberty Association, expressed concern that employers would not be allowed to fire people who work in their home but espouse different religious views or attempt to indoctrinate children with their religious views.

“From my vantage point, domestic workers should be protected from firing discrimination, but we still currently don’t treat homes like every other place of employment,” Takumi said. “We’re taking small steps here. We are focused on wage and hour protections and eventually we can get full protection for domestic workers from firing.”

New York’s law also does not protect domestic workers from being discriminated against in firing. While this exclusion is deeply problematic, the most pressing needs expressed by domestic workers are related to pay, rest, and protection from abuse—thus domestic workers’ legislation to date primarily reflects those needs. “It’s unfortunate that domestic workers still aren’t protected from discrimination in firing,” Ai-jen Poo said via email. “It’s definitely an area to work on for the future.”

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

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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