The New Mexico legislature just dealt a huge blow to the racist, sexist exclusion of domestic and home care workers from basic workplace rights, one that advocates hope will spark change throughout the country. With a 52 to 14 vote, lawmakers in the state House passed a bill on Tuesday evening providing these workers with basic protections like minimum wage and overtime pay in state law for the first time. With prior passage in the Senate, it now heads to the governor’s desk.
In 2013, the U.S. Department of Labor announced a rule change that brought home care workers under the protections of the Fair Labor Standards Act (FLSA), ending a longstanding “companionship exemption” that had excluded them from basic workplace rights like making a minimum wage or being owed overtime pay for extra hours. It followed a change in 1974 that expanded the FLSA to cover domestic workers.
But according to advocates, 17 states still don’t fully include home care and domestic workers in their labor laws. New Mexico has been one of those holdouts, whose state law explicitly excludes domestic workers from the basics of a minimum wage and other job protections offered to nearly all other workers. That means state law doesn’t require that they be paid the minimum wage or overtime for extra hours, nor protect them from retaliation or discrimination.
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While federal law may offer those protections, “the real issue is enforcement,” said Stephanie Welch, supervising attorney of workers’ rights at the New Mexico Center on Law and Poverty. Home care and domestic workers in New Mexico could make a complaint to the Department of Labor if their rights are denied, but those complaints too often go uninvestigated and unenforced. “If they were covered under state law, they would have a state agency that enforces state workers’ rights,” Welch explained. The state agency “has a duty under state law to investigate state wage claims … and to recover wages that are owed.”
In one of the listening sessions held to make the case for legislative change, a home care supervisor named Alfreda recalled the stories of fellow caregivers who live in rural parts of the state who aren’t reimbursed for their gas mileage driving to and from clients’ homes. The FLSA doesn’t require that employees be reimbursed for business expenses, but companies can violate the FLSA if failure to do so makes their earnings dip below the minimum wage. Because their employers don’t abide by this rule, though, some home caregivers have to drive up to 50 miles just to serve disabled veterans or elderly people, paying out of pocket for gas. Because they’re making only about $9.50 an hour, it’s often not financially worth it for them to do that kind of work.
Other workers said they had been misclassified as independent contractors, which meant they had to pay their own employment taxes, further lowering their meager incomes and depriving them of other basic rights. Others still simply aren’t paid for all of the hours they work. Once the law goes into effect, “they’ll have that money and they’ll have higher incomes,” Welch pointed out.
Currently, average pay for the 61,000 people in the state employed in this work is just $9.51 an hour. More than half earn so little that they fall below 200 percent of the federal poverty line, and about half qualify for public assistance. Yet it’s the fastest-growing occupation in the state, and one that will become even more critical as the population ages. The state is projected to rank fourth in the country for the share of its population age 65 and over by 2030, and the need for care workers is projected to grow by 40 percent by 2024.
Without stronger protections, though, people are fleeing the industry. Workers have told stories of people leaving care work to work at McDonald’s or other fast food jobs because it’s less demanding and they can expect a stable wage. The hope is that the new law will reduce turnover and even attract people to a high-demand job.
The legislation’s origins trace back to the state senate voting in 2017 to create a task force on the possibility of changing state law to mirror federal law for home care and domestic workers. That task force became a two-year effort that produced two different reports.
Advocates ensured that at each of the listening sessions convened to inform the report across the state, lawmakers were invited to talk to their constituents and participate in them. Even Republicans came to the listening sessions. That turned into a bipartisan appetite for action. “They all realized they’d probably all been a caregiver [usually in an informal capacity] and [are] likely to need one as well,” said Adrienne Smith, president and CEO of the New Mexico Direct Caregivers Coalition. “They saw themselves in the people who came to the listening sessions, and that changed their minds.” Republicans were also drawn to the issue out of a desire to provide more support for disabled veterans and to save the state money by helping people remain in their homes.
Chances for successful legislation were boosted when Democratic Gov. Michelle Lujan Grisham, whose background includes work on elderly care, was elected to replace Republican Susana Martinez. (Grisham has indicated that she will sign the bill into law.) Democrats hold a majority in both chambers of the legislature. Smith said the time was right to push for legislative change. “We just felt like, ‘Hey, everything’s aligned here this year finally,’” she said.
The significance is huge. Domestic workers were excluded from the original Federal Labor Standards Act in 1938 to placate Southern lawmakers who didn’t want Black people included. “We just haven’t caught up with the days of slavery,” Smith pointed out. “There’s a whole class of workers who, because of the color of their skin … weren’t allowed to make what everybody else was making.” This legislation is a big step toward righting that wrong.
The state is building on the momentum offered by federal action. Beyond including these workers in existing labor laws, Sen. Kamala Harris and Rep. Pramila Jayapal announced the first-ever federal bill of rights for domestic workers in November. That kind of action “makes it a lot easier at the state level to push for these reforms,” Welch said. It also helps that national moments like #MeToo have brought attention to the devaluation of what is usually women’s work, given that state advocates are fighting for better rights for an overwhelmingly female workforce. “Excluding them from wage protections is a part of devaluing women’s work and of caretaking work,” Welch said.
In turn, advocates in the state hope that their legislation can prompt other places to make change. “Hopefully we can contribute to that momentum in other states,” Welch said. “It would be great if we could all continue to work together to make it happen other places.”