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Immigration bill: For nannies and caregivers, legal status isn’t enough

by Jonah Lowenfeld

July 2, 2013 | 10:13 am

Photo by Jonah Lowenfeld

Photo by Jonah Lowenfeld

At 2 p.m. on a recent Wednesday, Amelia Barnachea waited in a copy shop in downtown Los Angeles, shifting her weight from one foot to the other. "I’m exercising," the diminutive Filipina-American home health aide explained, looking very spry for her 72 years. 

Barnachea, who officially retired years ago, had spent the previous 18 hours filling in for a friend who was responsible for an ailing white woman only a few years Barnachea’s senior. 

Barnachea said she’d been awake almost the entire time. 

"I had to feed her. The place was dirty, so I had to clean. I had to cook something for her to eat," Barnachea said. "That’s the work of an aide."

Domestic work is often fluid, and the treatment of workers varies depending on their bosses. But federal laws that grant basic protections to almost all other workers in the United States — minimum wage requirements, for instance, and laws governing overtime pay — don’t apply to elder-care workers like Barnachea. Some workers don’t even get a standard meal break.

"Right now, some of our members have to pull food out of their pockets and eat whenever they can," said Aquilina Soriano, executive director of the Pilipino Workers Center of Southern California. "There are some employers who don’t want them to sit down even for a moment."

[Related: The proposed reforms, rights and regulations]

On June 27, the U.S. Senate approved an immigration bill that would bring 11 million people living illegally in the United States out from the shadows; should it become law, the bill would grant provisional legalized status to millions of people, including hundreds of thousands of domestic workers, offering them a path to citizenship. Legalized status would also bring with it other concrete benefits, including the ability to visit family members abroad and to get a driver’s license.

Activists aren’t popping champagne yet, as it’s not clear whether the Republican-controlled House of Representatives will pass similar legislation and allow the Senate’s bill to take effect. What’s more, advocates for domestic workers’ rights are also acutely aware that even if the Senate bill were to become law, without additional changes to existing state laws and federal regulations newly legalized domestic workers could still find themselves stuck working in a shadow economy. 

"Should immigration reform be enacted into law, it will be a tremendously positive change in the lives of these people and for our country," said Hadar Susskind, director of Bend the Arc Jewish Action, who also runs the progressive Jewish group’s political action committee. "At the same time, home care workers who are here legally, or are citizens, face a huge array of challenges." 

Rabbi Heather Miller, center, sounds a shofar at a 24-hour vigil that began on June 26, one day before the Senate passed comprehensive immigration reform legislation. Photo by Dan Kacvinski

’The standards are basically not governed by law’

Bend the Arc was one of a number of Jewish groups actively lobbying for passage of the Senate version of comprehensive immigration reform. Others include the American Jewish Committee (AJC), which has devoted significant resources to organizing Jews behind immigration reform and published a handbook in 2012 titled "Immigration Reform: A Jewish Issue?" In it, AJC invokes economics, national security and demographic power politics to make the case that Jews should get behind reform. 

To persuade Jews to get involved with an issue that will mostly benefit non-Jews, the AJC brochure also leans heavily on the Jewish history of immigration to the United States and on biblical and talmudic texts. 

Yet while immigration reform advocates ask Jews to think about what today’s laws might have meant for their grandparents and great-grandparents a century ago, domestic workers’ rights advocates are asking Jews to consider what today’s laws mean for the people who clean their homes, care for their children and look out for their aging parents.

U.S. labor law doesn’t do much to protect domestic workers. Household employers are explicitly exempted from laws that apply in other workplaces, and where laws do exist they regularly go unheeded and unenforced. 

"The standards are basically not governed by law," said Kevin Kish, director of the employment rights project for the legal aid nonprofit Bet Tzedek. "They’re governed by community standards."

Over the years, Bet Tzedek has represented victims of the most egregious abuse — including one woman brought from Peru to Los Angeles by a professor as a housekeeper. The professor then confiscated her passport and forbade her from leaving the house, then beat her and threatened her family. When the worker made efforts to contact Bet Tzedek, her employer attempted to get her deported back to Peru. 

[Related: Modern slavery — Answering the cry]

Such stories of brutality toward domestic workers are rare, but the lesser abuses also add up: Those who work behind the closed doors of private homes typically earn low wages and rarely receive the benefits afforded other employees. They also work in environments that can be hazardous, and they must endure abuses of power with little recourse to act. 

These were the findings of the Center for Urban Economic Development (CUED) at the University of Illinois at Chicago in its 2012 survey of more than 2,000 nannies, housecleaners and caregivers in 14 cities across the United States. Thirty-five percent of workers reported working long hours with no breaks, nearly one-quarter (23 percent) of the workers surveyed reported being paid less than minimum wage ($8 an hour in California), and only 9 percent reported having a written contract with their employers. Nineteen percent of workers said they had been subjected to threats or verbal abuse on the job. 

Undocumented domestic workers, who made up 36 percent of the survey’s respondents, were markedly worse off than their counterparts. Median wages for those without legal status were found to be 17 percent lower than those of U.S. citizens employed in households.

The survey results suggest that even household employers who adhere to the models of common practice in their communities may in fact be breaking existing laws. 

Although there’s no way of documenting this, it’s commonly believed that the overwhelming majority of household employers — some estimate between 80 and 95 percent — do not pay taxes on wages paid to household employees. Indeed, fewer than 9 percent of the domestic workers surveyed by CUED in 2012 reported that their employers pay into Social Security on their behalf. 

And while current California law does not require that caregivers get breaks or overtime pay, some household employees — including housekeepers — are entitled to such benefits.

Nevertheless, Kish said, many employers ignore these laws as well. 

’These people, their lives depend upon this wage’

Lately, some Jewish communities have been devoting increased attention to this issue. Last month, Bet Tzedek’s Kish participated in a conversation with Rav Yosef Kanefsky of B’nai David-Judea about what California law and Jewish law require of employers vis-à-vis their household employees. 

On some subjects — the prompt payment of wages, for instance — Jewish law is unambiguous. 

"These people, their lives depend upon this wage, and that’s why you have to be so particular — so machmir (stringent), really — about making sure that you’re paying people on time," Kanefsky told a reporter, a few weeks after he covered the topic at a Shabbat afternoon program on June 1. 

This commandment can be traced back to a verse in Deuteronomy: "Pay them their wages each day before sunset, because they are poor and are counting on it." Yet the 2012 survey found that 23 percent of household employees said they had been paid late on at least one occasion in the past year. Ten percent said that during that same period, they had been paid less than what they were owed — or nothing at all. 

Kanefsky also took on a more nuanced question: From the standpoint of halachah (Jewish law), when may an employer cancel an agreement to engage an employee’s services? 

The Talmud addresses this in terms of agricultural workers, but Kanefsky applied the biblical text to the present day. If a parent comes home early from work and wants to send the nanny home, Kanefsky told me that halachah requires the full day’s wages be paid to the worker. If a family goes on vacation and expects an employee to be available for them upon their return, they have "some degree of financial obligation" to that employee for the wages that would have been paid during that time. 

"The only circumstance under which the employer is not committed to pay the wage," Kanefsky said, "is if, (a) what happened is a completely unpredictable ’act of God’ and the employer did everything in his or her power to ensure that the work would be there, and (b) that the person didn’t commence work."

Interestingly, Kanefsky said that he and his congregants agreed in advance that they would not address questions of immigration. 

"At least for our first go-round, we felt that we wanted to talk about the issues that people would come and engage with and not with issues that they would be squirming in their seats about," Kanefsky said. 

Nonetheless, Bet Tzedek’s Kish, who is not Jewish, said he was surprised by the high standard for behavior Kanefsky espoused to the 40 members of his congregation who attended the program in early June.  

When employers and domestic workers hash out their responsibilities to one another, Kish said, "A lot of the negotiation doesn’t refer to law or what’s written in the labor code. It’s, ’What do your friends do? What does your family do? What do people in your community do?’ "

’Be a mensch’

It’s not clear how many Jews are asking such questions at all. Rabbi Jonathan Rosenberg of Shaarey Zedek Congregation, the largest Orthodox synagogue in the San Fernando Valley, said that the questions his congregants ask about domestic workers are focused less on wages and more often concern questions about "what a non-Jewish worker inside the home is allowed to do with regard to matters of observance." 

Rabbi Jonathan Bernhard of Adat Ari El, a Conservative synagogue in Valley Village, said he has been asked by congregants — infrequently — what Jewish tradition has to say about domestic employees. Most of the time, he said, they’re not asking about immigration issues, even if they are employing people who don’t have authorization to work in this country. 

Those who do come with questions, Bernhard said, mostly want to talk about wages and vacations, and, in his experience, most appear to "already know the answers" to the questions they’re asking.

"What I would say is, ’Look, be a mensch. Now we have to figure out what that looks like in this situation,’ " he said. "But that’s really what they’re looking for. They want to be a mensch."

Such rabbinic guidance may be sufficient for individual cases, but domestic workers and the activists working on their behalf are trying to broaden accountability among employers and inject more specificity into these kinds of discussions. The Domestic Workers Bill of Rights, introduced by Assemblyman Tom Ammiano (D-San Francisco), was developed with input from household employees and would grant certain basic rights to domestic workers that they don’t have at present. 

"Right now, nannies and caregivers do not have the right to overtime pay, do not have the right to meals and rest breaks," Soriano of the Pilipino Workers Center said. "This creates the situation where they are working around the clock and being compensated very little."

Soriano’s group is a member of the National Domestic Workers Alliance (NDWA), which has been advocating for bills of rights for domestic workers in a number of states, including California. Other Jewish and interfaith groups, including the L.A.-based Clergy and Laity United for Economic Justice, have gotten involved in these state-specific efforts, as well. 

NDWA, together with Bend the Arc and the New York-based Jews for Racial and Economic Justice, are members of the Caring Across Generations movement, which is pushing President Barack Obama to approve new regulations formulated by the Department of Labor that will extend minimum wage and overtime protections to home care workers. 

Photo by Dan Kacvinski

Ammiano’s bill, AB 241, would grant to California’s domestic workers these and a handful of other rights. On May 29, the California Assembly voted 45-25 to approve the bill; the State Senate’s Industrial and Labor Relations Committee also approved the bill in a hearing on the bill on June 26. 

It’s the second time the legislation is making its way through Sacramento; in 2012, Gov. Jerry Brown vetoed the Domestic Workers Bill of Rights, citing concerns about the "economic and human impact" of the bill on those who are cared for by domestic workers. 

Should the State Senate pass the bill and the governor sign it — and Carlos Alcala, Ammiano’s communications director, said it’s hard to predict which way Brown will go on this issue — California would join New York and Hawaii in adopting an explicit bill of rights for domestic workers. 

Each one of those bills has its own particular language and protections. The Hawaii law specifically protects breastfeeding employees against discrimination; the California bill introduced in the last legislative session granted workers permission to use the kitchen in the home "without charge or deduction from pay."

"That would be a little problematic for us," said Irving Lebovics, chair of the California branch of Agudath Israel of America, an Orthodox advocacy organization. As written, the law looked as though it might have compelled Orthodox employers to allow employees to use their kosher kitchens. 

Language was added to the bill the first time around, Lebovics said, that exempted employers with specific food allergies or dietary restrictions from allowing their workers to use their kitchens. That language has been replicated in the current bill. 

As for the question of how non-Jewish workers should eat in kosher-observant households, Lebovics called it a "non-issue." 

"We’ll go the extra mile to make sure they have what to eat," he said. "If somebody wants something that’s not kosher, they’re free to eat it. Just not inside the house."

But what some Orthodox Jews see as a non-issue appears to have been experienced by some domestic workers as an insult. 

One afternoon last month, I listened as a number of domestic workers, including some who have worked for Jewish families, spoke about their experiences. They all said they feel particularly vulnerable — either because they are not in this country legally or because they feared for their jobs and for future employment — and all asked that their names not be included in this article. One, who I’ll call L, recalled an unpleasant experience with the Jewish family that employed her mother in the 1990s. 

The mother in this family didn’t just prohibit L’s mother from eating non-kosher food in the house, but extended the ban into the backyard. L had been visiting her mother at the time, and she told me she remembered watching as her mother’s Jewish employer snatched food away from them, threw it across the backyard, and then forced L’s mother to go clean it up. 

Another woman told me that she had heard stories of domestic workers being forced by their kosher-observant Jewish employers to eat their lunches outside, or in the family’s garage.

Whether these anecdotes represent common practice among observant Jewish employers is impossible to ascertain, but Rabbi Nachman Abend, associate director at the Chabad of North Hollywood for the past seven years, said he hadn’t heard of any situations in which employees perceived kosher laws as insulting. 

"I would say most people respect religion, and most people, if you take the time to explain it to them, not only do they not take offense, but they appreciate it very much," Abend said. 

’I almost cried. It had been so long since I had heard any words of appreciation.’

Abend’s own family employs a domestic worker — he and his wife have five children, including twin babies — and when he gets questions from members of his community, he offers guidance not so much from Jewish law but from his own practice. 

"I don’t know if they’re asking me as a Jewish legal authority or as a rabbi, friend and mentor," Abend said. "I give general advice. So if somebody asks me if they should pay their nanny for July 4, or whatever national holiday is coming up, I say, ’I do.’ "

This question — how should a person treat his mother’s caregiver or her child’s nanny? — appears to be on the minds of many people these days, and on the minds of Jews, in particular. 

A parents group in a wealthy neighborhood of Brooklyn, N.Y., has been conducting annual surveys of "nanny compensation" that cover everything from the range of hourly wages to whether "major Jewish holidays" are paid holidays for nannies. 

Hand in Hand: The Domestic Employers Association, a group started in 2010 by (mostly Jewish) employers of nannies, caregivers and housekeepers, issued guidelines to help other domestic employers foster "dignified and respectful working conditions" in their homes. 

So I asked Soriano, whose group represents more than 600 Filipina caregivers and other domestic employees, what advice she would give to domestic employers looking to be good bosses. First, Soriano urged employers to value their employee’s time, and to understand the power imbalance between employees and their employers. 

"Sometimes," she continued, "when an employer is asking an employee to work, it’s not easy for the domestic worker to say no — even if they have other obligations at that time."

Soriano went on: "It’s really about how they’re treated, as well. They’re not servants; they’re whole human beings, with families. If they’re being treated as if they’re not a whole person a lot of the time, I know from our members that really makes them feel bad."

One of the domestic workers who spoke with me earlier this month, whom I’ll call S, said she had once quit a job she didn’t like, but it was only after her next employer thanked her for work she had done that she realized how unhappy she had been while working for her prior boss. 

"I almost cried," S said. "It had been so long since I had heard any words of appreciation."

Nothing in California’s proposed domestic worker’s bill of rights entitles a worker to receive thanks from her employer. But the bill would require employers to pay overtime and grant meal and rest breaks to all of their domestic employees. And while there’s no guarantee that  this new law will be followed any more widely than the existing ones, activists feel hopeful that the bill of rights could function as a starting point to educate domestic employers about how to treat their workers. 

Amelia Barnachea is working on the effort to pass the bill of rights in California. But just before she headed home for some (long-overdue) rest, she offered a philosophical explanation of what makes for a good working relationship. 

"If there is love and care [between an aide and her patient], you can work for a long time," she said. "If there is none of those, just money, you can’t stay long. You cannot work for money alone."

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