The constitutional parameters of New York state's domestic workers bill of rights: balancing the rights of workers and employers.

• Author: Young, Donna E.
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

1. INTRODUCTION

   New York State's new Domestic Workers Bill of Rights (1) is a remarkable and welcome departure from the ordinary governmental lack of enthusiasm for protecting workers who work in other people's homes. For the first time in any U.S. jurisdiction, domestic workers are given protections akin to those commonly found in non-unionized workplaces. (2) The statute was enacted in July 2010 after several years of failed attempts at legislative reform. (3) The law amends New York State's Labor Law, Executive Law, and Workers' Compensation Law. (4) In enacting the new law, the New York State Assembly found "that because domestic workers care for the most important elements of their employers' lives, their families and homes, it is in the interest of employees, employers, and the people of the state of New York to ensure that the rights of domestic workers are respected, protected, and enforced." (5)

   Prior to the enactment of New York's law, domestic workers (6) were afforded virtually no protections that were commonly enjoyed by other workers, either through law or custom. (7) In New York, they were not, and in most other jurisdictions still are not, entitled to vacation leave, medical leave, notice of termination, or the right to organize and bargain collectively. (8) They were not covered by antidiscrimination laws, (9) nor were they protected against wrongful discharge. (10) The matrix of laws that do cover domestic workers are found in different configurations throughout the country, contain complicated exceptions, and are difficult to enforce. (11) For example, none of the most important federal statutes regulating the workplace provide full coverage for domestic workers. (12) The Fair Labor Standards Act ("FLSA") that regulates minimum wage and overtime pay (13) does not cover live-in caregivers. (14) More disturbing are the explicit and implicit exclusions of domestic workers found in the Occupational Safety and Health Act ("OSHA"), (15) the act that protects workers against occupational dangers; the National Labor Relations Act ("NLRA"), (16) the act that guarantees the right to organize and collectively bargain; and Title VII of the Civil Rights Act of 1964 (17) that protects workers against various forms of discrimination. New York represents the first successful campaign by domestic worker advocates to win protection through state legislation. (18)

   Not surprisingly, the new law was met with overwhelming approval of domestic worker groups and labor activists. Yet, there was virtually no organized opposition from employers. (19) However, employer concerns may arise when it comes time to enforce the law. (20) Employers might object to governmental intrusion into the family home, notwithstanding general approval of some degree of regulation of the "typical" workplace. Questions of privacy and freedom of expression are at least implicated by the new law. One might ask how the law will be enforced without some intrusion in the operation of someone's private household. These questions arise in a setting unlike any other employment setting--within the employer's private home. I argue that despite this unique setting, the new law, though touching upon certain constitutional rights of employers, does not run afoul of the Constitution any more than does regulation aimed at more traditional workplaces. Constitutional questions that arise in the employment setting routinely involve an assessment of the rights and obligations of the parties and of the public. Although balancing the interests between an employer and employee is common in the constitutional jurisprudence of the workplace, (21) some might argue that because employment takes place within someone's home, the constitutional analysis ought to reflect, in some way, the exceptional nature and setting of the domestic employment relationship. That is, the government should exercise more caution in intervening in a dispute between employer and employee when that dispute takes place in someone's private home. However, I argue that there is no reason why such tension arising from the enforcement of the new act ought to be balanced in a way that is not clearly in line with the way the regulation of employment operates outside the home. Therefore, employers' rights to privacy and free speech within their own home ought to yield to the protected interests of domestic workers to the same extent as would be expected in a more typical work place.

   Part I provides a brief overview of the manner in which U.S. law has evolved over time to deal with the woman's role in the home and in the workplace. Through cases upholding legislative initiatives delineating and limiting the parameters in which women were entitled to work outside the home, courts contributed to the popular conception that women's roles as wives and mothers were primary, and that these roles should be preserved at the cost of women's equal access to employment. The consequences of these early legal pronouncements reverberate today in the regulation of work done within the home. Domestic workers have to struggle not only against the idea that the work they do is not really work (i.e., that it's just part of women's natural proclivities), and that its value in the labor market is limited, but also against deeply imbedded legal doctrine that treats the family home as a near-sacred forum into which there should be no governmental intrusion. Against this legal context then, New York's law can be seen as a significant departure from the ways in which state governments have treated domestic work.

   Part II outlines the parameters of New York's new Domestic Workers Bill of Rights. Though the new law goes a long way in addressing some of the most significant barriers to workplace protections, questions remain as to how vigorously the law will be enforced. Part III examines some constitutional questions that might arise with regard to the law's enforcement. Arguments might be made that in enforcing the new law, the government will unduly interfere with employers' privacy and free speech rights. However, I conclude that once someone has chosen to employ a household worker, then he/she has no special constitutional protections that are unavailable to employers in more traditional workplace settings. Though there are general limitations to governmental action, there are no constitutional barriers to full enforcement of the law simply by virtue of the household setting within which the law operates.

2. THE MAKING OF HOUSEWORK AS WOMEN'S WORK

   Housework is not the first topic that comes to mind when one thinks about constitutional law. In fact, housework is not a topic that one sees addressed in many legal forums at all. But it is clearly a topic which, even if not foremost in one's mind, has an impact on most of our lives. Who does it, when, how, for how long, and under what circumstances? The answers vary, but the pattern is clear. Whether housework is done by a paid employee or by a member of the household, work done within the home is overwhelmingly done by women, (22) and commonly considered a matter of private concern.

   Feminist legal scholars have brought to light the significance and consequences of a regulatory scheme that relegates certain activities to either the private or public sphere. (23) Housework is one such activity that has at some point been unambiguously relegated as a private matter. However, it is also a topic that involves an evaluation of the roles of men and women in both the home and in the workplace, and as such it has gained more attention among legal scholars interested in both family and employment law. This heightened attention to the roles of men and women vis-a-vis domestic work has led to a strong critique of the justifications for relegating men and women to "separate spheres," and has contributed to an understanding that not everything that happens within the home is out of bounds of direct legal regulation. (24) Nonetheless, attitudes about the roles of men and women within the private home have played a role in the manner in which legislators and courts have dealt with regulation of work outside the home. In the Supreme Court's 1872 decision holding that states were not required to admit women to the practice of law, (25) Justice Bradley, in his concurring opinion in Bradwell v. Illinois, stated,

   the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. (26) These sentiments, that women were more naturally suited to primacy in household matters, were found in later decisions upholding legislation that provided special treatment for female workers outside the home. (27) In fact, the home and activities within it have greatly influenced the ways in which courts and legislatures have evaluated legislation designed to protect male and female workers in the workplace. Women's housework and other care-giving activities performed within the home have acted as the backdrop for protective employment laws for much of American labor history. For example, in Muller v. Oregon, the Supreme Court upheld an Oregon law limiting the number of hours women could work in a laundry or factory facility. (28) Despite its ruling only three years earlier striking down similar...