Analysis Abortion

Race and the Fair Labor Standards Act: 75 Years Later, Vestiges of Racism Persist

Sheila Bapat

On the 75th anniversary of the Fair Labor Standards Act, many women of color are still excluded from overtime and minimum wage protections. The law's legislative history helps explain why.

On Tuesday, the Supreme Court struck down key provisions of the Voting Rights Act (VRA), a critical piece of U.S. legislation addressing racial bias at the polls. Tuesday also marked the 75th anniversary of the Fair Labor Standards Act (FLSA), a major piece of New Deal legislation that extended minimum wage and overtime protections to most U.S. workers. Both events, though seemingly unrelated, reflect how Congress and the Supreme Court can perpetuate deep-seated problems of racism in the United States.

As Bryce Covert points out at ThinkProgress, home care workers—people who care for the ill, the elderly, and people with disabilities—are still not considered full participants in the economy. Since its enactment, home care workers have been excluded from the overtime and minimum wage provisions of the FLSA. Former Labor Secretary Hilda Solis, working with domestic workers’ advocates, proposed new regulations last year that would undo this “companionship exemption” and apply federal minimum wage and overtime laws to caregivers.

The new regulations are still being considered by the White House, and it is unclear when or whether they will be approved. Even though then-candidate Barack Obama made it a priority in 2007 to change these regulations, he has thus far not acted. There are some 2.5 million in-home caregivers in the United States, most of them women of color, and two-thirds of whom would be affected by the new rule.

But what explains this exclusion of so many workers who are key to the health and well-being of so many aging and infirm Americans? The debates and passage of the FLSA in 1938 reflect racial motivations of Southern legislators to exclude Black workers. As Loyola law professor Juan Perea has noted, “The hearings and debate on the FLSA reveal direct evidence of intentional discrimination against blacks because of their race.”

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In his article, “Echoes of Slavery,” Perea quotes Rep. J. Mark Wilcox of Florida during debates over the FLSA in 1937:

Then there is another matter of great importance in the South, and that is the problem of our Negro labor. There has always been a difference in the wage scale of white and colored labor. So long as Florida people are permitted to handle the matter, this delicate and perplexing problem can be adjusted; But the Federal Government knows no color line and of necessity it cannot make any distinction between the races. We may rest assured, therefore, that … it will prescribe the same wage for the Negro that it prescribes for the white man. … [T]hose of us who know the true situation know that it just will not work in the South. You cannot put the Negro and the white man on the same basis and get away with it. Not only would such a situation result in grave social and racial conflicts but it would also result in throwing the Negro out of employment and in making him a public charge.

Thus the exclusion of home care workers from something as basic as minimum wage and overtime protections today is a vestige of this deep-seated racist mindset. As recently as 2007, the Supreme Court heard the case of Evelyn Coke, a Black single mother of five and a home care worker who earned about $7 an hour and no overtime. Coke sued for overtime, and her case ascended to the Supreme Court, where her claims were finally defeated.

The Court’s handling of the case was narrowly focused on whether the companionship exemption was constitutional and binding. The only, flippant reference to the material impact of the “companionship exemption” on workers occurred during oral argument, when Justice Stephen Breyer mentioned the effect of opening up overtime regulations on the families who employ home care workers:

I live in San Francisco. My mother lives in Massachusetts. Now, if I hire a companion to live in Massachusetts, that companion does not work about a private home of the person, me, by whom she is employed. … And if you win this case, it seems to me suddenly there will be millions of people who will be unable to do it and, hence, millions of sick people who will move to institutions. … It is a very worrisome point.

Justice Breyer’s remarks likely reflect the experience of the justices—none, we can safely assume, have worked as home care workers, and all viewed the case in light of what it means for them, as potential employers of home care workers.

Rewire recently spoke with Craig Becker, the attorney who represented Evelyn Coke in the case. “It is short sighted to think we can supply this service on the backs of workers and not pay them fairly,” Becker said. “I am sympathetic to people who need services particularly people of limited means, but for the long term to think you can satisfy this need by denying basic rights to providers is a failure of social policy.”

In its decision on the VRA, the Supreme Court asserts that Section 2 of the law is out of date and needs to be revised by Congress to reflect “current conditions” in the states. It is unfortunate the Supreme Court did not feel the same way about the FLSA in hearing Evelyn Coke’s case. While a minority of states now cover home care workers within their minimum wage and overtime provisions, it is incumbent on the federal government to ensure that all home care workers are treated equally under the law. Ultimately, if the White House adopts Solis’ new regulations, the decision will not only affect the millions of home care workers; it will also reverse the racist undertones the original FLSA.

News Human Rights

Marginalized Home Health-Care Workers Now Eligible for Minimum Wage, Overtime Guarantees

Emily Crockett

A federal appeals court ruled that home health-care workers, most of whom are women and people of color, should qualify for minimum wage and overtime benefits.

A federal appeals court on Friday reinstated Obama administration labor protections for home health-care workers, paving the way for minimum wage and overtime benefits to be paid to the nation’s two million workers who provide in-home care for the elderly and people with disabilities.

Home health-care workers are disproportionately women (more than 90 percent), people of color (more than half), and immigrants (one in four). One in five are single mothers.

These workers often make poverty-level wages for difficult work under stressful conditions, and for 40 years they have been classified by the Labor Department in such a way that they can’t qualify to make minimum wage or receive overtime pay.

“This ruling is a resounding victory for home health-care workers employed by agencies,” said Lenora Lapidus, director of the ACLU Women’s Rights Project. “These are among the poorest workers in the United States and have been historically excluded from federal labor protections.”

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The new regulation, which was upheld by a three-judge panel after being stymied by a district court ruling late last year, closes a loophole in the Fair Labor Standards Act (FLSA) that exempted “companionship” workers from overtime or minimum wage requirements.

This loophole reflected an outdated view of home care workers as informal “sitters” for elderly or disabled people, advocates say. The loophole also ignored the reality of what home care work entails (feeding, bathing, rehabilitating, managing medications, and more) and how large the $84 billion home care industry is.

Home care work is among the nation’s fastest-growing occupations, but it has a 50 percent turnover rate partly due to low pay, long and unpredictable hours, and physical and emotional stress from the work itself.

“High demand makes home care one of our nation’s fastest-growing occupations—but finding skilled, committed workers for caregiving jobs is becoming increasingly difficult,” Deane Beebe, media relations director for the Paraprofessional Healthcare Institute (PHI), said in a statement. “Today’s decision is a first step to addressing this labor shortage.”

Even when home care workers technically make the minimum wage, they may effectively make less because they don’t get compensated for travel or overtime, and they often can’t get enough hours to make ends meet. Three out of five home care workers rely on public assistance.

The regulation expands protections to workers serving private households and hired by “third party” employers, which describes the vast majority of home care workers today.

Home health care industry officials are reportedly still considering their options, including whether to appeal the case to the Supreme Court.

Meanwhile, as BuzzFeed News notes, implementation will be the next challenge once the rule goes into effect. Wage theft is rampant even in industries that have wage and overtime protections. And there are still certain classes of workers who don’t enjoy those basic legal protections, including many agricultural and domestic workers as well as employees of small businesses with annual gross sales of less than $500,000.

Commentary Human Rights

Sex Work or Human Trafficking? Race and Imperialism in CNN Report From Cambodia

Anne Elizabeth Moore

In a December report from Cambodia, CNN failed to distinguish between consensual sex work and human trafficking, and did nothing to help viewers see how anti-human trafficking initiatives really work under globalization: as acts of cultural imperialism.

“Roaches scatter when the light comes,” Mira Sorvino says in a December video report for CNN, describing a group of shirtless brown-skinned men, faces blurred for the camera, who decline consent to be filmed by getting up and going inside as her videography crew approaches. This group of men weathered the illegal bombing of their country, Cambodia, by her country, the United States, and then survived mass killings under the Khmer Rouge and two decades of civil war after that, all of which left the country so impoverished that people there currently live on about two dollars a day, or less than half the living wage. Sorvino has no sympathy, however, and she doubles down: “Roaches and rats scatter when the light comes,” she says angrily. Her comparison of these men to two of the world’s most hated creatures would, in other contexts, be seen as full-on racist imperialism, but Sorvino feels justified using the slurs because Don Brewster, a white human trafficking abolitionist living in Cambodia, told her these men are sex traffickers. And she believes him.

“It’s not OK to sell children to pedophiles,” she says to the men, who she has already learned do not speak English. “Protect your children. Do not hurt your children. Protect them.”

“I can’t deal with the reality of it,” she says finally, walking away from the scattered group of men. But she has dealt with no reality whatsoever—only rumor.

More Than Gender

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In January, Soraya Chemaly wrote a thoughtful and necessary response to the CNN report, focusing on the accompanying written story, “The Women Who Sold Their Daughters Into the Sex Trade,” and not the above-described video. Chemaly rightly called out the news organization for skimping on the facts in a rush to present a market-ready savior narrative. “The piece seemed to want us to know that Cambodian mothers are doing terrible things to their daughters, but that help, in the form of a nice American man, is on the way,” Chemaly wrote.

Chemaly correctly sets allegations of human trafficking against a backdrop of global capitalism and misogyny. Human trafficking is a gendered and classed notion, certainly—these are stories, especially in Cambodia, about women’s economic opportunity. Yet overlooking that these allegations are also about race allows us to miss how anti-human trafficking initiatives really work under globalization: as acts of cultural imperialism, of which misogyny is only a part (although a large one).

CNN covers up the impact of these human trafficking abolitionists in failing to distinguish between consensual sex work and human trafficking. The lack of distinction is unfortunately common at anti-trafficking NGOs. In fact, when Chemaly’s article appeared I was visiting one in Phnom Penh.

With 150 clients looking to escape from what the NGO called “human trafficking,” I thought the program manager might be able to shed light on the difference between trafficking and sex work. “Trafficking would be when a woman is sold against her will,” she told me. “Most of [the women here] were sold initially, or at least put under a lot of pressure from their families, to go into the sex industry themselves.”

But putting pressure on a woman isn’t the same as forcing her to do something against her will, and when I mentioned this to the NGO staffer, she admitted that these distinctions can get confusing.

“There are women who say, ‘My mom got really sick and we didn’t have anyone to pay her bills, so I decided to that I was going to traffic myself.’ But then we have some who say, ‘My aunt told me she got me a job as a domestic servant, and the next thing I knew I was being dropped off at a brothel or karaoke bar and being told that that’s where I worked now.’ So you get both, and then you also get [situations] where things aren’t so clear,’” she explained.

Her use of the phrase “decided to traffic myself” was particularly confusing, if the definition of trafficking disallows autonomous consent, so I asked her again about the distinction between trafficking and sex work.

“There’s definitely a line that gets blurry,” she said. “We also have a lot of women who maybe crossed that line. Maybe they were initially sold against their will, a lot of times sold as under-aged girls, but then there came a point where they didn’t owe a debt to the brothel owner anymore, but then they continued working as sex workers. So they aren’t being held in chains, which doesn’t happen very often in Cambodia anymore, but they are being entrapped by lack of any other alternatives, and the fact that there’s still pressure on them from their families to generate an income.”

Those economic and familial pressures may be real, but context is necessary to figure out whether or not they trump autonomy. Absent cultural context, the slippages in the term “sex trafficking” allow a wide range of practices to be condemned, while a very narrow and distinctly Western mode of correction is installed. It’s not just women who are being stripped of agency—all Cambodians are.

“Sex Trafficking” in Cambodia

Cambodians have lived in poverty for generations, and the local history of commercial sex is as complicated as the history of the nation itself. After the Khmer Rouge and subsequent Vietnamese-installed regime, the United Nations moved in to install its own government in 1992 in an effort to shuttle in the current democratic system. The United Nations Transitional Authority in Cambodia (UNTAC) brought in droves of highly paid internationals—mostly men, and many Westerners—to run the Southeast Asian nation. Some contend that the sex industry had been established in the French colonial days; by the 1990s Cambodian women were largely running the trade. UNTAC forces, and the unfathomably high wages they were paid, only increased demand, which in turn increased supply. Prime Minister Hun Sen even suggested in 2008 that AIDS would stand as the legacy of the UNTAC era.

Before we lionize (a lá “happy hooker” metaphors) or chastise (a lá CNN) female entertainment entrepreneurs, however, note that Susan Rosas in her paper Sex Trafficking in Cambodia as a Complex Humanitarian Emergency suggests that women had been left out of the UNTAC vision for a future of Cambodia. They weren’t, for example, offered positions of power, despite the UN’s tepid mandate to intervene on human rights abuses, nor were effective policies limiting domestic violence or sexual assault put in place.

Of course there’s no need to congratulate women who sell their daughters for sex, but folks left out of traditional avenues to power and economic sustainability will find ways to survive. And women-run brothels both profit from masculine desire, and make jobs for women in an environment often hostile to their creation.

NGOs don’t see it that way, and trumpet female victimhood and its corollary description of women in the sex industry as “trafficked.” Arguing that, in an ideal world, no woman would willingly sell sex, abolitionists aim to eliminate the industry entirely. Sex workers, when asked, note the absence of this illusory world. The Phnom Penh Post found in 2009 that close to 90 percent of sex workers in Cambodia felt that prostitution was their best available job.

A Slippery Slope

Cambodian culture has traditionally shielded women from public life to focus on men and babies. It’s rare that gender norms are ever transcribed, but a 19th Century text called the Chbap Srei artfully combined our modern forces of advertising, social codes, and legal restrictions into a rulebook for girls. (There’s also one for boys; it’s shorter.) So, although great strides have been made among Cambodian women in recent years—in politics, activism, and culture—the Chbap Srei’s prescriptions haunt even Millennials, who want to change their country, sure, but want to take care of their families first.

Family, in Cambodia, is important. It’s part of the reason why the lack of employment options for women in the country gets overlooked—many women do leave (or fail to enter) the workforce to raise children. But the growth of the garment industry isn’t just due to fast fashion’s increasing production lines: Parents send daughters off from the provinces to work in factories so the family farm can keep going. “Children feel responsible for taking care of their parents and will do whatever is necessary to earn income,” a report from Action Pour Les Enfants explains. (Note that a lack of agency in maternity or apparel work never brings on allegations of “trafficking.”)

For if we look at the sex trade in Cambodia in economic terms—leaving aside the question of consent for a young woman who cares about her family—it makes a lot of sense. Garment workers earn $100 per month before overtime, in the only regulated minimum wage in the country. Women with degrees can earn $85 to $100 per month as high school teachers or $50 to $70 as elementary school teachers, although paychecks, sent by the government, are often late, and both workforces usually resort to bribing students the equivalent of a quarter a day to survive.

Laborers at a local private university tell me they earn $60 per month, as do grocery store clerks. And women who can raise or borrow the capital to buy a cart and supplies can make $75 to 
$150 per month as food vendors.

By comparison, hostess bars typically pay between $50 and $60 per month before tips. Sex work—which hostess bars may allow for but don’t mandate—may bring in between $60 and $100 per month from Cambodian or other Asian men, or as much as $20 per night from Westerners. And the living wage in Cambodia for single-earner households, based on projected cost-of-living increases since 2009’s Cambodia Institute of Development Study findings, runs about $150 per month.

There just aren’t very many work opportunities in the country, and it’s unclear that eliminating one of them will change that, even in the long-run. It is clear that, in the short-run, women and their families will starve.

Moreover, the impetus for abolition requires examination: If economic coercion turns all sex work into trafficking—if, indeed, one can traffic oneself—then all sex work, in short, is bad. It’s a slippery slope to all sex out of wedlock being bad, or all sex being bad, or, eventually, all women being bad. Melissa Gira Grant notes at Salon just how slippery this slope is, and who profits from the easy descent: the faith-based ministries that may, on one hand, be advocating abstinence campaigns domestically, and removing women from the sex industry abroad.

Indeed, one of the funders of the NGO I visited, Love146, claims not to be a faith-based organization but does claim to be “inspired by Christian faith.” It intends to abolish “child trafficking and exploitation. Nothing less.” Yet its 2012-13 annual report indicates that a full 56 percent of the youth it serves are Western—in fact, they’re participants in “tell your friends” campaigns in Connecticut and Boston, who may have had abstinence messaging filtered into their human trafficking awareness campaign. One suspects that domestic in-school lectures regarding sexual exploitation “inspired by the Christian faith” run a bit afoul of the mission to end child trafficking, and the concerns for such NGOs mount quickly.

Agape International Missions, founded by Dan Brewster, the focus of the CNN report, is far less subtle. “CHRIST’S CHURCH FIGHTING THE GROUND WAR ON SEX TRAFFICKING IN CAMBODIA” is the group’s straightforward mission statement. Through media outreach (CNN being only one example), skills-building initiatives oddly reminiscent of garment factories, and voluntourism, the organization hopes that “your heart will be transformed by Jesus to be a voice for the voiceless, be an advocate for AIM and joining us in partnership (sic).” On the ground, the work of this anti-sex-trafficking organization differs not at all from Christian missionary work. In a traditionally Buddhist country with a growing Muslim population, this has severe and concerning implications.

To what degree anti-human trafficking initiatives are merely the cheery new face of traditional Christian fundamentalism is unclear. But that’s not the only point of confusion raised by CNN’s report.

The Reality of Sex Trafficking

The problems of reporting on anti-human trafficking organizations go well beyond CNN. During my visit to the NGO in Phnom Penh I was told by the program manager that none of the information she gave me about clients would be confirmed by clients. A condition of visiting the center, in fact, was that I agree to the group’s rules before entering the facility, one of which was that I “refrain from asking clients about their past lives in the sex industry, because that causes them shame.”

I asked if that applied to journalists, and if so, how they verified stories they heard there.

“I guess it’s just a matter of trust,” she told me. “All of our clients’ stories come through interviews with our trained social workers and counselors, and you could talk with one of them if you wanted to confirm. But we don’t want to put our clients through that.”

Mediated “first-hand” stories are what anti-human trafficking work is built on. Similarly, the CNN report claims to be offering women the chances to tell their stories on camera, but these are just as mediated: by Khmer-to-English translators, by religious instruction, and by the economic coercion of a woman in poverty being offered resources by a rich media outlet and a sponsoring organization.

Like Mira Sorvino, we believe their stories are the “reality” of sex trafficking. But the reality here—that allegations of sex trafficking hide misogynist, racist, and imperialist desires—is far more distressing.