Analysis Law and Policy

Improving How Domestic Workers and Their Employers Settle Disputes

Sheila Bapat

The Brazilian Immigrant Center has launched a first-of-its-kind mediation program that seeks to resolve disputes between domestic workers and their employers. So far, it seems to be working.

The Brazilian Immigrant Center, just outside of Boston, has launched a first-of-its-kind mediation program that seeks to resolve disputes between domestic workers and their employers. All five mediated disputes that the group has taken on so far have been resolved.

The domestic workers’ movement is gaining traction nationally, with multiple states introducing legislation to codify labor protections for this population of workers. To date, state legislation and litigation have been the primary strategies employed by domestic workers’ advocates for redressing unpaid wages and improving labor conditions, but if the Brazilian Immigrant Center’s program continues to succeed, mediation may become a more popular resolution method for domestic worker-employer disputes. And beyond its potential to resolve disputes, the program illustrates another way in which the domestic workers’ movement is expanding domestic workers’ leadership potential.

Mediation is a method of alternative dispute resolution that, in theory, encourages open communication between disputing parties. Neutral mediators help litigants resolve their disputes at a time and place that works for all parties. Depending on the type of dispute, mediation is not always effective, particularly when the parties involved would prefer to litigate so they have a chance at winning their entire claim. Mediation necessarily involves compromise. It is often built into typical employment suits.

The Brazilian Immigrant Center’s program shows that disputes between domestic workers and their employers may be a good fit for mediation. Given the deeply personal nature of domestic work, which often involves caring for children and the elderly, cooking, and living with families, the disputes can be very personal as well. Therefore, a resolution process that fosters open discussion is useful, as Lydia Edwards, director of legal services at the Brazilian Immigrant Center, told Rewire.

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“Domestic work is a unique industry with a different kind of employer-employee relationship that is as personal as it is legal,” Edwards said. “The issues are often very hurtful, personal issues related to respect and abuse and general workplace treatment inside of someone’s home. It’s not always cut-and-dry, like, ‘You didn’t pay me.’”

Over the last two years, the Brazilian Immigrant Center has litigated 50 cases between domestic workers and their employers, and 10 percent of those have been resolved through mediation.

The center’s mediation program dispatches two-person teams—one worker and one employer—to mediate the disputes. “The worker-employer relationship is so symbiotic. One doesn’t exist without the other,” Edwards told Rewire. “And it is a matter of keeping the process neutral too.”

This mediation program’s model enables the disputing parties to avoid expensive litigation, which is particularly important since domestic workers often earn minimum-wage salaries and a court date could force a worker to miss work. Mediation also gives litigants more control over when the mediation may take place, whereas court dates are typically dictated by a judge. And mediation is generally subject to confidentiality agreements between the parties, whereas court documents are a matter of public record.

In the five cases resolved through the center’s mediation program, the domestic workers never litigated a suit against their employers in court.

Some legal aid providers caution that mediation may not always be appropriate to resolve domestic worker-employer disputes without litigation.

“From our experience with cases in which workers’ rights have been violated, it is clear that many employers need litigation to give them the incentive to meaningfully engage in mediation,” said Hollis Pfitsch, staff attorney with the Legal Aid Society of New York.

Pfitsch also believes mediation works best when the employer and employee have committed to a collective bargaining process and a contract that has ensured that basic standards have already been met. One study of success rates in the U.S. Postal Service’s mediation program shows that mediation is effective when employees are unionized. However, domestic workers are currently not covered by federal collective bargaining law or most states’ collective bargaining laws.

Beyond just the potential to resolve worker-employer disputes, including domestic workers in the process as mediators has been an innovative way of developing workers’ leadership and career skills. The majority of these workers are immigrant women, and many have earned college degrees in their home countries but fell into domestic work in the United States due to language barriers or because they may be undocumented.

Sona Soares is a career domestic worker who has been trained to serve as a volunteer mediator in the Brazilian Immigrant Center’s program. Soares was raised in Brazil, where she earned degrees in mechanical engineering and math. She moved to the United States at age 22, fell in love, married, and had a baby. Her husband abandoned Soares when her son was 19 days old.

“Becoming a domestic worker often results from a lack of options and necessity. I had to take care of my son,” Soares said. “And I had steady work as a housekeeper and nanny.”

She said that over the past 28 years she’s worked as a domestic worker, she has worked for kind employers as well those who have treated her poorly.

“Sometimes you go home and cry a little,” she said. “And the next day you get up and go to work again.”

After several years volunteering with the Brazilian Immigrant Center as a volunteer interpreter, Soares participated in the mediation training program along with about 20 other domestic workers and employers.

“There’s not always enough attorneys to go around, plus there’s this untapped talent that immigrant women have,” Edwards said. “Many workers like Sona Soares have college degrees from the U.S. or other countries that they aren’t using. So we felt that here’s this untapped potential and there’s tons of disputes that need to be resolved.”

News Economic Justice

Wage Theft Could Cost $32 Million Weekly for Pennsylvania’s Low-Wage Workers

Michelle D. Anderson

Advocates say that government oversight is weak, and laws only provide a slap on the wrist when they are enforced. Pennsylvania—much like the federal government—lacks enough regulators.

The U.S. Supreme Court’s recent refusal to consider a case involving several thousand Walmart employees brought attention to what employment advocates in Pennsylvania call a hidden crisis: wage theft.

Legal aid agencies and advocacy organizations such as the Pennsylvania-based Women’s Law Project use the term to describe employers’ refusal to pay wages due their workers.

“Shortchanged: How Wage Theft Harms Pennsylvania’s Workers And Economy,” a study released by the Sheller Center for Social Justice at Temple University’s Beasley School of Law, revealed that cooks, dishwashers, and food preparers, along with stock/office clerks and retail salespeople, were among the largest low-wage worker groups experiencing weekly minimum wage violations.

Employers commit wage theft by paying a daily rate that does not meet Pennsylvania’s $7.25 hourly minimum wage requirements, misclassifying people who work as independent contractors, paying in cash, failing to keep adequate records, and taking money out of paychecks to account for uniforms, supplies, and other products necessary to perform the job.

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Terry L. Fromson, managing attorney at the Women’s Law Project, a public interest legal center, told Rewire that the practice compromises women’s economic security in Pennsylvania, where women make up about two-thirds of people who work for minimum wage, and where the minimum wage is the lowest allowed by federal law.

“Factor in losing 15 percent of a would-be paycheck to wage theft, and a family led by a primary or sole breadwinning mother sinks further into poverty,” Fromson said.

In the Walmart case, first decided by a Philadelphia jury in October 2006, 186,000 current and former employees from the retailer’s Pennsylvania stores were awarded $187 million in a class action suit for unpaid wages that were withheld between March 1998 and April 2006.

The workers’ counsel, Donovan Litigation Group, said the employees had been owed $140 million of the $187 million and will now split $224 million due to interest, according to the Philadelphia Inquirer.

Walmart had appealed the decision in 2006, taking the case to Pennsylvania’s Supreme Court, who affirmed the jury verdict in 2014. U.S. Supreme Court justices on April 4 decided to not take up the case and to support the state’s high court decision.

In the years since Walmart employees first took action, workers and legal aid agencies across the United States, including in Pennsylvania, have brought many more wage theft cases.

Last year, for example, more than three dozen people who work for low wages at the Denver-area Carniceria y Verduleria Guadalajara grocery store won $305,000 in back wages and penalties in a U.S. District Court ruling using federal and state “wage theft” laws.

Papa John’s franchisees in New York were found guilty of wage theft last year and ordered to pay back more than $500,000 to settle claims that they swindled employees out of earned income.

There remains, however, little information as to how prevalent wage theft has become across the country, advocates for low-wage workers told Rewire. The Sheller Center last year sought to fill the void in wage theft data in Pennsylvania.

The study, which used the state’s right-to-know law to obtain data from the Pennsylvania Department of Labor and Industry (DLI) and relied upon extrapolations rather than original data, found that the state’s people who work for low wages, on average, lose about 15 percent of the their earnings to wage theft.

The study suggested that nearly 400,000 people who work in Pennsylvania experience a minimum wage violation and more than 300,000 experience an overtime violation every workweek. The weekly loss amounts to an estimated $19-32 million in wages, according to the “Shortchanged” authors.

The study revealed that the DLI, the state agency responsible for handling wage theft matters, was unable to collect wages in more than half of the complaints filed by people who work.

In fact, despite closing 5,000 cases annually, the DLI collects wages in about 2,000 of those incidents, according to the Temple University study.

The U.S. Department of Labor in a study released last year acknowledged the prevalence of wage theft among wage and salary workers in California and New York.

The report concluded that more than 300,000 people who work in those states were victims of wage theft. Many of those affected, the federal study revealed, work in service-based positions in the restaurant and hotel industries and were more likely to be women, people of color, and undocumented people.

Undocumented residents in New York, for example, were 3.1 times more likely to experience wage theft.

A local report released by Centro de Trabajadores Unidos en Lucha in Minneapolis found that nearly half of low-wage workers in the Twin Cities have experienced wage theft.

Nadia Hewka, senior attorney at Community Legal Services, a Philadelphia-based legal aid outlet, said many businesses exploit undocumented workers’ vulnerabilities.

“Employers cut corners—some of them will choose to hire immigrant workers because they think they won’t complain,” Hewka told Rewire.

At Community Legal Services, Hewka said many people who work don’t know they are entitled to overtime and often seek to recover wages after they haven’t been paid for extended periods of time.

“That often happens with immigrant workers who are not familiar with laws in the U.S.,” said Hewka, co-founder of the Pennsylvania Immigrant Workers Rights Coalition.

The “Shortchanged” authors noted that undocumented workers fear their supervisors will call immigration authorities, while immigrants with employment visas are often afraid they may lose visa privileges if they speak up.

Identifying Wage Theft

The Temple University study, which excluded low-wage employees in more rural settings, like farm, forestry, and fishing workers, outlined the many ways employers get away with wage theft.

The report relied upon a landmark investigation released in 2009 called “Broken Laws, Unprotected Workers,” which surveyed low-wage workers in Chicago, New York City, and Los Angeles.

The “Broken Laws” study estimated about 90 percent of home health-care workers were victims of off-the-clock violations.

Philadelphia resident Natasha, whose last name was withheld by the “Shortchanged” authors, was a victim of wage theft while working as a home health-care worker.

Her employer, who often avoided workers and created barriers to keep employees from engaging each other about their paychecks, failed to compensate Natasha for travel time between client homes and even missed paycheck due dates.

The mother of four, who made $9.50 per hour and witnessed her boss call the police on coworkers who complained about wage theft, was ultimately fired after becoming ill despite her stellar attendance and documented excuse for missing work.

“I was so frustrated and I wanted to break down and cry because I couldn’t spend another week not being able to feed my children, having to choose between bread, eggs or milk,” she said, according to the study. “It was the worst experience of my life.”

Advocates for people who work low-wage jobs contend that wage theft also hurts the state’s economy, because money that would otherwise be spent in the economy is stolen from people who work, while businesses evade taxes that could be used to fund schools and road projects.

Law-abiding businesses may struggle to compete with enterprises that steal wages, advocates said.

The U.S. Department of Labor study noted that the burden of wage theft ultimately shifts from the private sector to the government because people who work for low wages will seek public assistance if their pay is insufficient.

People who work for low wages and their allies have looked to key policy changes to address wage theft, though it’s proven difficult because of resistance in Pennsylvania’s Republican-controlled legislature, Hewka said.

Some measures proposed during the 2015-2016 legislative session, like HB 250, which sought to raise the penalty for wage theft and for retaliating against an employee for reporting said theft, get stuck in committees and die there, she said.

A resolution to discharge the house’s labor and industry committee from further consideration of HB 250 was presented in October 2015.

Legislators in other states have proposed measures aimed at addressing wage theft. Democratic lawmakers in Wisconsin last year proposed legislation that would allow the state’s Department of Workforce Development to charge interest on unpaid wages and levy fines up to $1,000 per violation against employers who break state wage theft laws.

Hewka added that government oversight, overall, is weak and laws only provide a slap on the wrist when they are enforced, she said. Pennsylvania—much like the federal government—lacks enough regulators, she said.

In Pennsylvania, the Minimum Wage Act and the Wage Payment and Collection Law are the protections low-wage workers can rely on to reclaim stolen wages.

The Wage Payment and Collection Law limits penalties to the higher of $500 or 25 percent of wages owed, and includes criminal fines limited to $300.

The state’s minimum wage law, on the other hand, doesn’t offer any damages to people who work low-wage jobs, unlike federal law.

“Shortchanged” authors have recommended harsher penalties for employers, including business license revocation and allowing people who work to place a hold on employer’s property until they receive unpaid wages.

Other solutions encourage state policymakers to collaborate with community groups to target investigations and to create a process for workers to submit anonymous or confidential complaints.

The state has enjoyed some successes in battling systemic wage theft against people who work.

Philadelphia City Councilman William “Bill” Greenlee sponsored a bill that will create a wage-theft watchdog in the city’s Managing Director’s Office.

The bill, which was unanimously approved by the council in November, requires a wage-theft coordinator to respond to worker complaints and find victims who may lack education about their rights.

The coordinator will be responsible for looking at thefts of anywhere between $100 and $10,000, and can revoke business licenses and impose a city fine of $2,000 per incident.

Hewka, who worked with Greenlee on the measure, said the city should be prepared to handle complaints in July.

The measure, she said, will offer relief to low-income citizens who cannot afford a private lawyer and legal aid groups who can only provided a limited amount of free services.

Commentary Science

Unintended Pregnancy Reaches 30-Year Low, But Racial and Economic Disparities Persist

Elizabeth Dawes Gay

Low-income women and women of color are still more likely to experience an unintended pregnancy than women of higher economic status and white women.

This piece is published in collaboration with Echoing Ida, a Forward Together project.

Unintended pregnancy in the United States reached a 30-year low in 2011, according to a new analysis from the Guttmacher Institute. Among women ages 15-to-44, it fell from 51 percent of all pregnancies in 2008 to 45 percent in 2011.

The sharp decline correlates with an increase in contraceptive use over the same time period, likely from expanded access to birth control, which is supported by the 2010 health-care reform law. More women have been able to delay or prevent pregnancy and build the families they want as a result of improved access to contraception, the authors suggest.

But, it’s not all good news. Long-standing racial and economic disparities remain. Low-income women and women of color are still more likely to experience an unintended pregnancy than women of higher economic status and white women.

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According to the analysis, titled “Declines in Unintended Pregnancy in the United States, 2008–2011” and published in the New England Journal of Medicine, women living in poverty in 2011 were five times more likely to experience an unintended pregnancy than higher-income women. Black and Hispanic women were roughly 2.5 times more likely than non-Hispanic white women to experience an unintended pregnancy. And even when income was taken into account, Black women had higher rates of unintended pregnancy than both white and Hispanic women.

UnintendedPregnancy-income

The birth control benefit in the Affordable Care Act (ACA)—which requires that most private health plans cover contraception without a co-pay, as Medicaid has done for years—will likely contribute to a decline in rates of unintended pregnancy. Even so, why are racial and economic gaps remaining relatively unchanged?

In order to see progress for women of color, we must overcome social and systemic inequity that contributes to varying levels of health-care access, contraceptive use, and unintended pregnancy.

The Guttmacher analysis does not examine the root causes of disparities in reproductive health according to race and class, but the researchers acknowledge that such disparities are endemic in the United States. In an email to Rewire, Dr. Lawrence Finer, director of domestic research at the Guttmacher Institute, shared, “These disparities … stem from broader and persistent economic and social inequities, including access to education, well-paying jobs, safe neighborhoods, and quality health coverage and care.”

These disparities won’t disappear by themselves. Systemic change will require targeted efforts to expand Medicaid, improve health-care access and quality, and close racial disparities in income and wealth.

Medicaid Expansion

Women of color, particularly low-income Black and Latina women, do not benefit from the ACA the same way white women do. Women of color are still more likely to be uninsured, which may be attributed to lower incomes and lack of access to employer-sponsored health insurance. Moreover, the majority of the 17 states that have refused to expand Medicaid (concentrated in the South) have a higher percentage of residents of color, further undermining policy gains with respect to birth control access.

As a result, some women of color may be unable to afford the birth control of their choice or access the most reliable methods. Highly effective methods like the intrauterine device and implant are often more expensive up front than other methods like the pill or the ring. Furthermore, women without consistent access to birth control may rely on condoms, withdrawal, or emergency contraceptive pills, which simply aren’t as dependable.

Medicaid expansion would dramatically increase access to birth control for low-income women, reaching people with an income level at or below 133 percent of the federal poverty level, which is $24,300 per year for a family of four. Some childless adults fall into what is known as the Medicaid coverage gap, which Medicaid expansion addresses: They are not eligible for Medicaid and do not earn enough to receive subsidies to purchase coverage through the health insurance marketplace. As of 2015, 14.9 million people of color fell into that gap.

To make progress, all states should expand Medicaid to remove financial barriers to contraception so that low-income women and women of color can maintain their health and avoid unintended pregnancy.

Improve Care for Women of Color

Beyond expanding financial access to health care and contraception through insurance coverage, there is a real need to improve how low-income people and women of color experience and interact with the health-care system.

Historically, women of color have been used as test subjects and mistreated by the medical establishment. To this day, when some women of color seek care, they are met with insensitivity, disrespect, and neglect from health-care workers. Women’s experiences with the health-care system have been documented in films like The American Dream and No Más Bebés, and shared in a variety of reports. There is no doubt that some women of color avoid the health system altogether because of bad experiences with care providers or out of safety concerns, which can adversely affect their health status.

Ending racial discrimination in health care is an ongoing battle, but one that is key to meeting the needs of women of color and closing gaps in health outcomes like unintended pregnancy. The disproportionate rates of unintended pregnancy among women of color, who are already more likely to live in poverty than white women, may contribute to lower educational attainment and higher economic insecurity. Delaying, spacing, or avoiding pregnancy helped women to achieve their educational and career goals, according to research summarized in a 2013 report.

Close Racial Disparities in Economic Security

Lack of insurance coverage for contraception is further complicated by the fact that women of color disproportionately struggle under the weight of poverty. Some women of color simply don’t earn enough to make ends meet and may find themselves choosing between things like paying the bills to keep the lights on or paying for birth control.

Black and Latina women in particular have little to no accumulated wealth. According to a 2013 report by the Center for American Progress, single Black women have a median wealth of only $100 and single Latina women have a median wealth of $120, compared to $41,500 for single white women. It is imperative to close racial gaps in income and wealth through more equitable systems and practices.

As more and more people benefit from health-care insurance, we may continue to see greater contraceptive use and an increase in the rate of intended pregnancies. Lower unintended pregnancy rates are a good thing for women and families, but researchers, advocates, care providers, and policymakers must take heed to prioritize the needs of low-income women and women of color.

“The best way to continue the recent progress is to ensure that all women, regardless of income, race, or any other characteristic, have access to a full spectrum of health coverage, information, and services they need,” said Dr. Finer. Without efforts above and beyond what has already been done, racial and economic disparities in pregnancy will persist.

CORRECTION: This piece has been updated to clarify the potential impact of the Affordable Care Act on unintended pregnancy rates.