Domestic Workers Bill of Rights Act
A BILL
To enhance the rights of domestic workers, and for other purposes.
Sec. 2 Findings
Congress finds the following:
There are an estimated 2,200,000 domestic workers across the United States working in private homes to provide home and personal care, child care, and house-cleaning services.
Domestic work is a job-enabling job that makes all other work possible. It is labor that cannot be outsourced to individuals abroad, nor is it close to being automated. Without the millions of domestic workers caring for children, seniors, and people with disabilities, and cleaning homes, much of the economy would come to a standstill.
During the COVID–19 pandemic, domestic work and other low-wage service jobs, disproportionately held by women, women of color, and immigrants, have been deemed essential. This crisis has shown how essential these jobs have always been to our economy. At great risk to the health of themselves and their families, domestic workers have worked on the frontlines of the pandemic to provide care to those more vulnerable to COVID–19, seniors, and individuals with disabilities, and have provided child care for the children of essential workers. A study of Black immigrant domestic workers conducted by the Institute for Policy Studies and the National Domestic Workers Alliance in May and June of 2020 found that 25 percent of workers surveyed experienced or lived with someone who has experienced COVID–19 symptoms. 73 percent of such workers surveyed indicated that they did not received personal protective equipment (“PPE”) from their employers.
Domestic workers experienced a rapid and sustained loss of jobs during the COVID–19 pandemic, which exacerbated the existing financial insecurity experienced by many domestic workers. Surveys from the National Domestic Workers Alliance and NDWA Labs between March and September 2020 found that for 6 consecutive months more than half of domestic workers surveyed were unable to pay their rent or mortgage. Nearly ¾ of workers surveyed did not receive any compensation when their jobs were canceled.
The employment of individuals in domestic service in households affects commerce, as described in section 2(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 202(a)).
Domestic workers are hired or contacted for work by phone, mail, or internet, or through newspaper ads, and travel to work through transportation on interstate highways, interstate transit, or vehicles in interstate commerce.
In 2019, the Bureau of Labor Statistics predicted that between 2019 and 2029—
the number of new jobs for home health and personal care aides will increase by 34 percent, which is an increase of 1,159,500 jobs and the largest increase in new jobs of any occupational category during such period; and
the number of new jobs for child care and house cleaning positions will increase by 6 to 7 percent.
The COVID–19 pandemic has increased the demand for in-home child care. According to the Center for Translational Neuroscience, the percentage of parents reporting use of home-based child care has grown since the onset of the pandemic from 27 percent to 31 percent.
An increasing number of workers, including domestic workers, are finding work on online platforms. An analysis from the JPMorgan Chase Institute found that between 2013 and 2018, the percentage of adults that had earned income from online platforms increased from 0.3 percent to 1.5 percent.
9 out of 10 domestic workers are women, and such women are disproportionately people of color and immigrants. Women, people of color, and immigrants have historically faced barriers to employment and economic advancement. According to the Economic Policy Institute, domestic workers also tend to be older than other workers. 2 in 5 domestic workers are age 50 or older, while just 1/3 of all other workers are at least 50 years old.
Domestic workers are paid low wages, can be subjected to workplace health and safety hazards, and face difficulties saving for retirement. An Economic Policy Institute analysis of data from the Current Population Survey indicates that the average wage for a domestic worker is approximately $12 per hour or $15,980 per year if working full-time. In practice, the average wage for a domestic worker is less than such approximation given that domestic work has largely been negotiated in the informal labor market.
Low-wage workers, including domestic workers, experience high rates of minimum wage and overtime violations, violations of laws related to workers' compensation and other workplace benefits, and illegal retaliation. A 2017 study from the Economic Policy Institute found that 2,400,000 workers—17 percent of the low-wage workforce—experiences wage theft. A 2009 report from the National Employment Law Project found that employment in private homes was one of the 3 industries with the highest rates of employment and labor law violations.
A landmark study of domestic workers published in 2012 by the National Domestic Workers Alliance and the Center for Urban Economic Development of the University of Illinois at Chicago Data Center titled “Home Economics: The Invisible and Unregulated World of Domestic Work” indicated poor working conditions across the domestic workers industry. The findings of such study included that—
domestic workers have little control over their working conditions, and employment is usually arranged without a written contract;
35 percent of domestic workers interviewed reported that they worked long hours without breaks in the year immediately preceding the interview;
25 percent of live-in domestic workers had responsibilities that prevented them from getting at least 5 hours of uninterrupted sleep at night during the week immediately preceding the interview; and
91 percent of domestic workers interviewed who encountered problems with their working conditions in the year immediately preceding the interview did not complain about their working conditions because they were afraid they would lose their job.
The study described in paragraph (13) found that domestic workers have little access to federally supported employment benefits. For instance—
less than 2 percent of such workers receive retirement or pension benefits, and less than 9 percent of such workers work for employers that collect payroll taxes on wages paid to such workers to provide eligibility for Social Security benefits; and
65 percent of such workers do not have health insurance, and only 4 percent of such workers receive employer-provided insurance, despite the fact that domestic work is hazardous and often results in illness or physical injuries.
Compounding these challenges is the fact that many domestic workers have been, and in many cases continue to be, excluded from key provisions of labor and employment laws like the Occupational Health and Safety Act of 1970 (29 U.S.C. 651 et seq.), and the National Labor Relations Act (29 U.S.C. 151 et seq.). Live-in domestic workers employed by private households remain excluded from the overtime protections in the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.). Minimum employee threshold rules, misclassification of domestic workers as independent contractors, and exclusion of independent contractors from coverage mean that most domestic workers are also de facto excluded from Federal civil rights protections, including protections under title VII of the Civil Rights Act of 1964 (29 U.S.C. 2000e et seq.) and other laws.
The International Labour Organization’s Domestic Workers Convention, adopted in 2011, calls for domestic workers to have the right to freedom of association and collective actions, protections against harassment, privacy rights, and the right to be informed of conditions of employment. This Convention also calls for the right of domestic workers to keep their travel documents, the right to overtime compensation and rest breaks, the right to minimum wage coverage, the right to occupational safety and health protections, and mechanisms to pursue complaints and ensure compliance with the law.
The unique nature of their work, in private homes with individuals and families, also often makes it difficult for domestic workers to use Federal programs and policies to improve their skills and training and to join together collectively to negotiate better pay and working conditions.
Many domestic workers are also vulnerable to discrimination and sexual harassment. These issues are further exacerbated by the unique working conditions faced by domestic workers, such as isolation, poverty, immigration status, the lack of familiarity with the law and legal processes, limited networks for support, language barriers, and fear of retaliation and deportation.
Millions of older individuals, individuals with disabilities, and families are increasingly relying on domestic workers. By bringing domestic work out of the shadows and creating incentives and investments that help raise wages and standards for domestic workers, the Federal Government can lift millions of the most vulnerable workers out of poverty, reduce turnover due to poor working conditions, thereby enhancing quality of care, and support the millions of working and retired people of the United States who rely on them.
Sec. 3 Definitions
Fair Labor Standards Act definitions— In this Act—
the terms commerce, employ, employee, employer, enterprise, enterprise engaged in commerce or in the production of goods for commerce, goods, person, and State have the meanings given such terms in section 3 of the Fair Labor Standards Act of 1938 (29 U.S.C. 203); and
the term regular rate has the meaning given such term in section 7(e) of such Act (29 U.S.C. 207(e)).
Other definitions— In this Act:
Career pathway— The term career pathway has the meaning given such term in section 3 of the Workforce Innovation and Opportunity Act (29 U.S.C. 3102).
Child— The term child—
means an individual who is under 18 years of age; and
includes an individual described in subparagraph (A) who is—
a biological, foster, or adopted child;
a stepchild;
a child of a domestic partner;
a legal ward; or
a child of a person standing in loco parentis.
Disability— The term disability has the meaning given the term in section 3 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12102).
Domestic partner—
In general— The term domestic partner, with respect to an individual, means another individual with whom the individual is in a committed relationship.
Committed relationship defined— The term committed relationship for purposes of subparagraph (A)—
means a relationship between 2 individuals, each at least 18 years of age, in which both individuals share responsibility for a significant measure of each other's common welfare; and
includes any such relationship between 2 individuals, including individuals of the same sex, that is granted legal recognition by a State or political subdivision of a State as a marriage or analogous relationship, including a civil union or domestic partnership.
Domestic services— The term domestic services—
means services—
of a household nature;
provided in interstate commerce; and
performed by an individual in or about a private home (permanent or temporary); and
includes services performed by individuals such as companions, babysitters, cooks, waiters, butlers, valets, maids, housekeepers, nannies, nurses, janitors, laundresses, caretakers, handymen, gardeners, home health aides, personal care aides or assistants, and chauffeurs of automobiles for family use.
Domestic worker— The term domestic worker—
means, except as provided in subparagraph (B), an individual, including an employee, who is compensated directly or indirectly for the performance of domestic services; and
does not include—
an individual who is a family member, friend, neighbor, or parent of a child and who provides child care for the child in the child's home;
any individual who is—
an employee of a family child care provider; or
a family child care provider; and
any employee described in section 13(a)(15) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(15)).
Domestic work hiring entity— The term domestic work hiring entity—
means any person who provides compensation directly or indirectly to a domestic worker for the performance of domestic services; and
includes—
a person acting directly or indirectly in the interest of a hiring entity in relation to a domestic worker; and
an employer of a domestic worker.
Family child care provider— The term family child care provider means 1 or more individuals who provide child care services, in a private residence other than the residence of the child receiving the services, for fewer than 24 hours per day for the child (unless the nature of the work of the parent of the child requires 24-hour care).
Medicaid HCBS-eligible elderly individual— The term Medicaid HCBS-eligible elderly individual means an individual who—
is 65 years of age or older;
is eligible for and enrolled for medical assistance for any of the following services (whether provided on a fee-for-service, risk, or other basis) under a State Medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) (including any waiver or demonstration under such title or under section 1115 of such Act (42 U.S.C. 1315) relating to such title), and includes an individual who becomes eligible for medical assistance under a State Medicaid program when removed from a waiting list:
Home health care services authorized under paragraph (7) of section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a)).
Personal care services authorized under paragraph (24) of such section.
PACE services authorized under paragraph (26) of such section.
Home and community-based services authorized under subsections (b), (c), (i), (j), and (k) of section 1915 of such Act (42 U.S.C. 1396n), such services authorized under a waiver under section 1115 of such Act (42 U.S.C. 1315), and such services provided through coverage authorized under section 1937 of such Act (42 U.S.C. 1396u–7).
Case management services authorized under section 1905(a)(19) of the Social Security Act (42 U.S.C. 1396d(a)(19)) and section 1915(g) of such Act (42 U.S.C. 1396n(g)).
Rehabilitative services, including those related to behavioral health, described in section 1905(a)(13) of such Act (42 U.S.C. 1396d(a)(13)).
Such other services specified by the Secretary of Health and Human Services.
Parent— The term parent, with respect to a parent of a domestic worker, means a biological, foster, or adoptive parent of a domestic worker, a stepparent of a domestic worker, parent-in-law of a domestic worker, parent of a domestic partner of a domestic worker, or a legal guardian or other person who stood in loco parentis to the domestic worker when the worker was a child.
Personal care aide or assistant— The term personal care aide or assistant means an individual who provides personal care services.
Personal care services— The term personal care services means assistance provided to an individual who is not an inpatient or resident of a hospital, nursing facility, intermediate care facility for individuals with intellectual disabilities, or institution for mental disease that enables the recipient to accomplish activities of daily living or instrumental activities of daily living.
Secretary— The term Secretary means the Secretary of Labor.
Self-directed care— The term self-directed care, with respect to an individual, means services for the individual that are planned and purchased under the direction and control of the individual, including the amount, duration, scope, provider, and location of the services.
Shared living arrangement— The term shared living arrangement means a living arrangement involving—
not more than 2 individuals who are an individual with a disability or a Medicaid HCBS-eligible elderly individual, except if 1 or more of the individuals are related to each other (by blood or a close association that is equivalent to a family relationship);
an individual providing services for compensation and living in the private home of the recipient of such services;
an individual receiving funding through a State Medicaid program under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.), or another publicly funded program;
a stipend or room and board as the primary form of payment for the individual providing such services; and
the individual receiving such services having the final decision regarding who is the provider of such services living with the individual, through a consumer-driven matching process that includes relationship building, person-centered planning as defined by the Administrator of the Centers for Medicare & Medicaid Services, and an assessment of individual compatibility.
Spouse— The term spouse, with respect to a domestic worker, has the meaning given such term by the marriage laws of the State in which the marriage was celebrated.