While fresh-faced progressive lawmakers have been grabbing headlines with their Green New Deal, multiple bills have been quietly piling up in Congress to plug longstanding holes in the original New Deal. These bills would extend basic but critical labor protections to workers who have historically been cut out of these standards: workers with disabilities, tipped workers, farm workers, and home care workers.
Here’s the tl;dr:
A first bill, introduced at the end of January by Sen. Bob Casey, and Reps. Bobby Scott and Cathy McMorris Rodgers, would phase out section 14(c) of the Fair Labor Standards Act, which has made it legal for employers to pay disabled workers as little as pennies per hour. It would also provide resources to help these workers transition into competitive, integrated employment in their communities.
Second, Congressional Democrats’ $15 federal minimum wage bill, the Raise the Wage Act — introduced in mid-January by Sen. Bernie Sanders and Rep. Bobby Scott with the backing of the full Democratic leadership — would also eliminate the subminimum wage for workers with disabilities and phase out the separate subminimum wage for tipped workers, which is currently $2.13 per hour.
In the first week of February, Sen. Kamala Harris and Rep. Raúl Grijalva introduced the Fairness for Farm Workers Act, which would extend time-and-a-half overtime pay to agricultural workers, as well as minimum-wage protections to most agricultural workers who still lack them.
Finally, Sen. Harris and Rep. Pramila Jayapal recently announced the first-ever federal domestic workers’ bill of rights, which would give the nation’s more than 2 million home care workers long-denied rights to overtime pay, safety and health protections, recourse against harassment and discrimination, collective bargaining, and more.
This legislation is designed to chip away at several pernicious “-isms” written into the United States’ labor law — racism, sexism, and ableism.
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Many labor carve-outs are the direct legacy of slavery: At the urging of Southern lawmakers determined to maintain a white economic and social hierarchy, the 1935 National Labor Relations Act (NLRA) and 1938 Fair Labor Standards Act (FLSA) — which established some of our most basic worker protections like the rights to form a union, earn a minimum wage, and receive overtime pay — cut out domestic and agricultural workers, who were overwhelmingly black and brown. At the same time, the discriminatory practice of tipping — which had originally enabled American employers to avoid paying wages to newly-freed black workers — and treating disabled workers as inferior permanently codified some forms of labor as lower-than-minimum-wage work.
As a result, workers in these groups tend to have a lot less power than other workers. For starters, the pay isn’t enough to keep workers out of poverty even if they have a full time job: In recent years, the median annual wage has been roughly $23,000 for tipped workers*, home care workers, and agricultural workers, and an estimated 420,000 disabled workers employed in “sheltered workshops” created under 14(c) were paid an average of $2.15 per hour. These groups of workers are also disproportionately likely to endure physical and verbal abuse, sexual harassment, wage theft, discrimination, and dangerous working conditions.
Yet these unprotected jobs make up a large and growing swath of our economy: Caregiving is the fastest-growing major occupation in the United States, and is forecast to be one of the largest sectors by the end of the next decade, with more than 4.1 million workers employed as home health aides and personal care aides by 2026. The largest employer of tipped workers, the restaurant industry, accounts for 9.5 million workers, which is nearly seven percent of the U.S. workforce. Since these jobs are heavily dominated by women and workers of color, their devaluation perpetuates America’s already-deep inequalities on the basis of race, gender, and disability. The Trump administration has further endangered the many immigrant workers in these professions — who made up 24 percent of domestic workers and 76 percent of farm workers in recent years — by pushing anti-immigrant policies and using xenophobic language that make it even less likely that immigrant workers will seek recourse for illegal or inhumane treatment.
Opponents will likely break out the usual fearmongering that closing loopholes will harm rather than help workers by making it harder to find jobs, like we’ve recently seen in D.C., New Jersey, and Maine. The problem with their argument is simple: States have already enacted these policies and seen positive results. In the eight states where tipped workers are paid the full minimum wage, tipped workers earn more and restaurant growth has outpaced other states. States such as New Hampshire and Maryland are already phasing out the subminimum wage for disabled workers, while eight states and Seattle already have domestic workers’ bills of rights in place. And in several states, including agricultural powerhouses California and Minnesota, farm workers have won overtime protections.
Lawmakers’ proposed fixes are by no means perfect. Perhaps the most egregious untouched loophole affects America’s more than 800,000 incarcerated workers, who earn as little as a few cents per hour — or nothing at all — and for whom labor is compulsory in some states. Also excluded are the roughly 1 in 8 workers in so-called “alternative work arrangements,” including independent contractors (ICs) as well as workers whose employers misclassify them as ICs to avoid taxes and legal requirements, such as Uber and Lyft drivers. Still, even if they’re imperfect and eight decades overdue, the proposed fixes are an important steps forward.
It’s no accident that the champions of these efforts in Congress are largely women and people of color, who come from the communities that have borne the brunt of these exclusionary policies. And it’s encouraging that some lawmakers believe that in addition to big, bold ideas, being a true progressive leader involves unglamorous, piecemeal grunt work, such as plugging the longstanding leaks in the nation’s labor laws. As long as the loopholes continue to exist, the shameful “isms” that create our two-tiered society will continue to stare us down through the holes of our frayed worker protection system.
* The most recent analysis of tipped workers’ wages nationwide, by Sylvia Allegretto and David Cooper, uses 2011-2013 BLS data in 2013 dollars. We assume that median wages have grown at roughly the pace of inflation, adjusting to today’s dollars using the Consumer Price Index for All Urban Consumers.