Academic journal article Albany Law Review

The Constitutional Parameters of New York State's Domestic Workers Bill of Rights: Balancing the Rights of Workers and Employers

Academic journal article Albany Law Review

The Constitutional Parameters of New York State's Domestic Workers Bill of Rights: Balancing the Rights of Workers and Employers

Article excerpt

I. 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. …

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