New Bills Address the Racist and Ableist Wage Loopholes in the New Deal

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.

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.

Many labor carve-outs are the direct legacy of slavery

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.



New Jersey Now Offers Paid Leave for All Families — Including Chosen Ones

New Jersey is a state of “mosts.” The most epic rest stops. The most tanned beach goers. The most envy of New York. But now it is has a new most to add to its name: state with the most inclusive paid family leave in the nation.

Today, thanks to the efforts of local advocates led by the NJ Time to Care Coalition, New Jersey Gov. Phil Murphy (D) signed into law dramatic improvements to New Jersey’s paid family leave law. The law doubles the length of paid family leave available to 12 weeks, increases the average weekly benefit to $859 from $632, improves supports for domestic violence survivors and their families, and more.

One of the most exciting policy advances is that the bill updates the definition of “family” to people who “have a close association with the employee which is the equivalent of a family relationship,” making New Jersey the first state in the nation to extend paid family leave benefits to chosen family. This new law will particularly improve the economic security of workers who are LGBTQ or who have a disability, as these workers are most likely to be forced to make the impossible choice between caring for a chosen family member and taking home a paycheck.

New Jersey’s victory is standing on the shoulders of decades of legal precedent. The U.S. government first recognized chosen family during Vietnam, allowing federal workers to take leave for the funerals of loved ones killed in combat if those people had “a close association with the employee … equivalent to a family relationship.” More federal benefits incorporated this definition in the 1990s, and in the last few years a host of states and localities, such as Arizona, Chicago, and Austin, have passed paid sick time laws that are inclusive of chosen family.

What is chosen family anyway? Simply put, it’s those people in your life you would do anything for. For me, one of those people is my college roommate, Diana. When my mom had a potentially fatal cerebral hemorrhage the month before finals our senior year, Diana dropped everything and drove with me nine hours to the hospital. When Diana’s son was born prematurely at just 24 weeks, I took time off work to help support her and her family. Diana and I have been family for more than 20 years — longer than I’ve known my husband, my stepmother, or any of my nieces and nephews — but until now no state in the country would have let us take paid family leave to take care of each other.

Millions of people across the country have an elderly neighbor who is more like a grandmother or a battle buddy they served with in the military.

And Diana and I aren’t alone — millions of people across the country have an elderly neighbor who is more like a grandmother or a battle buddy they served with in the military. In fact, research Laura Durso and I conducted shows nearly one in three Americans have taken time off work to care for chosen family. While caring for chosen family is a shared experience, it is especially common among LGBTQ workers and workers with disabilities, due in part to family rejection, making this advance particularly important for those communities.

While this bill makes New Jersey a trailblazer on paid family leave and chosen family, this is the latest step for the movement to increase recognition of the importance of supporting diverse family structures in legislation. Historically, of course, diverse families have always existed, but the law has at best ignored them and at worst actively harmed them, from denying cash benefits to unmarried mothers to defining marriage as a union limited to one man and one woman. While harmful family policies still exist, increasing legal recognition of chosen family is a bright light.

Of course, these legal changes were not happening in a vacuum. In the media, chosen family rose to the spotlight as the name of Noreen Stevens’ cartoon about Canadian lesbians and their loved ones, and is in evidence today on FX’s award-winning Pose, about New York City ball culture, as well as in media that isn’t queer-specific. (X-Men or Fast and the Furious, anyone?) And more to the point, it’s the reality of people’s lives, perhaps made most painfully, tragically clear during the height of the AIDS epidemic, when chosen family were denied visitation rights in hospitals despite their family-like relationships.

New Jersey has made a great start. Who’s next?



New Law Could Eliminate Disability Minimum Wage Loophole

Earlier this month, Representative Bobby Scott (D-IL) and Senator Bob Casey (D-PA) introduced legislation to eliminate the subminimum wage for workers with disabilities. The bill, the Transformation to Competitive Employment Act, phases out section 14(c) of the Fair Labor Standards Act, which made it legal for certified “sheltered workshops” to pay people with disabilities less than the minimum wage.

This means the estimated 400,000 people with disabilities who are paid an average of $2.15 an hour will slowly gain access to jobs that pay the full minimum wage. That’s a big deal, especially to people like George, who used to work in a sheltered workshop run by Melwood, the company where Cari serves as president and CEO.

George used to get nervous at work exactly twice a year. He’d held the same job providing cleaning services at the U.S. Department of Housing and Urban Development since 2008, but since Melwood was a sheltered workshop, George could be paid less than the minimum wage. The only way for him to avoid that was to test well at time trials held every six months. If he completed his work quickly enough, he was paid at a fixed rate. If he was too slow, he’d be paid a subminimum wage.

In 2019, people with disabilities should not be facing futures with segregation and subminimum wages.

Today, we recognize that type of testing as cruel. But Melwood was established in 1963 by families who wanted to provide their children with developmental disabilities with opportunities to gain skills, have a vocation, and earn a wage. At the time, this was considered progressive — many people with disabilities ended up warehoused in institutions, and these families simply wanted to be able to keep them at home. But as disability policy has evolved, disabled people have been able to demand more — including access to jobs that pay well enough that workers can support themselves. Society changed, and programs like Melwood had to change with it.

In 2016, Melwood got on board. It relinquished the 14(c) certificate that classified it as a sheltered workshop and transitioned to paying all of its employees with disabilities competitive wages in integrated settings.

There were supports in place to make it work: The University Centers on Disability, Parent Training and Information Centers, and Protection and Advocacy Network all provide supports and services to help people move to integrated employment. Oregon and other states have demonstrated the ability for disabled workers to achieve successful outcomes transitioning to competitive integrated employment when state Vocational Rehabilitation Agencies and Intellectual/Developmental Disability Services work together.

In 2019, people with disabilities should not be facing futures with segregation and subminimum wages. They should be allowed to reach their full potential in a competitive integrated environment. They should earn a fair day’s wage for a fair day’s work.

Correction: This piece was updated to remove one of the original authors.



The MLB Makes Millions on Minor Leaguers. It Refuses to Pay Minimum Wage.

Pitchers and catchers report to spring training this week, the first sign that Major League Baseball’s Opening Day is drawing near. But amid the hope that springs up with every new baseball season is an unacceptable fact: Many of the players at spring training aren’t being paid.

“Each year, every major league team has their minor league players report to spring training. Most fans don’t know those minor league players have to work 31 straight days for no pay,” said Garrett Broshius, a former minor league baseball player and current attorney who is attempting to sue Major League Baseball to ensure that minor leaguers receive fair pay for not only spring training, but all year round.

“If you’re requiring someone to work, you should be paying them the minimum wage. It’s a fairly basic principle,” he said.

Low wages, though, are the reality for most minor league players. At the lowest end of the pay scale, they make about $1,150 per month during the season, which lasts about half the year, and receive nothing during the offseason or spring training, even though they are expected to stay in shape and train.

All that unpaid and low-paid time adds up; many players make about $7,500 annually, or even less. And because they spend so much time practicing, traveling, and playing games without being eligible for any sort of overtime pay, their hourly compensation dips far below minimum wage.

“I’d work 70 hours a week, and I would get paid $45 per game, so that comes out to like $3 an hour,” said Jeremy Wolf, a former minor league player who now runs More Than Baseball, an organization that aids minor leaguers. “The hot dog vendor makes more than the players do.”

This is possible because minor league baseball players are exempt from most minimum wage and overtime pay protections. A federal spending bill that averted a government shutdown in March 2018 included the positively Orwellian “Save America’s Pastime Act,” which explicitly exempted minor league baseball players from federal pay protections in the Fair Labor Standards Act, so long as they were paid the equivalent of the federal minimum wage of $7.25 for a 40-hour week, which comes out to about $1,160 per month. The bill also explicitly said players are only paid for 40 hours of work during the season  “irrespective of the number of hours the employee devotes to baseball related activities,” and that players don’t need to be paid for spring training or the off season.

I’d work 70 hours a week, and I would get paid $45 per game, so that comes out to like $3 an hour.

Major League Baseball had been pushing for something like the “Save America’s Pastime Act” to become law for years, in order to blunt legal efforts such as Broshius’. After spending just half a million dollars or less annually on lobbying Congress between 2009 and 2015, Major League Baseball spent more than $1 million annually from 2016 to 2018.

Now the league is aiming to do the same thing at the state level, since states are allowed to exceed federal minimum wage and labor protections. At the behest of MLB,  Arizona Republican state Sen. T.J. Shope introduced a bill that would exempt minor league players from that state’s minimum wage law, which requires pay of $12 per hour by 2020, with few exceptions. He introduced it despite having clear misgivings about its legality, calling it “not ready for prime time.”

Not coincidentally, Arizona is one of the two states in which the bulk of spring training takes place (the other being Florida, where the state minimum wage is just $8.46 an hour). Broshius’ suit also brought claims under Arizona law, which the bill’s sponsor explicitly says would be undermined by his legislation.

“It’s just a preemptive strike by Major League Baseball,” said Wolf. “There a group of people that are just trying to cement not paying these employees.”

As Broshius explained, the month they work without pay in the spring can really hurt minor league players who don’t make it onto a major league roster — which entitles them to not only a minimum salary of more than $40,000 but also union protection — when they get shipped off to a new minor league team. “You go to a new place and you have to pay for your first month rent, put down a security deposit, a lot of players have student loans, and obviously you have your regular bills too,” he said.

Major League Baseball teams, not the minor league affiliates themselves, pay minor league players. They claim that paying fair wages to everyone in the minor league system would cause financial ruin, and also isn’t necessary because players have months of offseason in which they can work other jobs. Plus, they argue, minor league players are more akin to struggling actors going on auditions than daily workers who should receive steady pay.

“Their core argument is that it’s not practical to pay the players based on how long the games last or the hours they spent practicing because a minor league player isn’t doing it for a career, they’re doing it to see if [making it to the majors is] viable,” explained Lindsay Brandon, an attorney who specializes in sports law.

But, Brandon added: “Are these athletes generating revenue for these minor league teams? Absolutely.” The Texas Rangers, for instance, made $1.2 million from spring training last year. Brandon likened the case of minor league players to that of NCAA athletes, who are also attempting to earn a fair share of the revenue they generate. (Other professional sports leagues, such as the NBA or NHL, tend to pay their minor league players better.)

Compensating unpaid players for their month in spring training would amount to a rounding error for most major league teams. In fact, paying them at least minimum wage all year round would barely put a dent in the bottom line.

“If you give every player minimum wage for a 12-month season —  each team has 200 minor leaguers — each team raises their payroll by $4.5 million,” said Wolf. “$4.5 million is one average major leaguer.” Indeed, average pay in MLB in 2018 was about $4.5 million, while the league made $10.3 billion in revenue.

Why do minor leaguers put up with such shabby treatment? They don’t want to step out of line because they know that the dream of the majors, and its vast riches, is not that far away.

“I got to wear a Mets uniform. Players who are playing are blinded by that sort of thing,” said Wolf. “No one’s going to strike, no one’s going to scream union, no one’s going to do anything to make themselves stand out.”

So baseball gets to keep paying its players next to nothing, because it can.



They Used To Hold Hands Through the Wall. Now, There’s Razor Wire.

NOGALES, Arizona — The February sun reflects off the concertina razor wire strung across the U.S.-Mexico border wall like razor-sharp tinsel. The wire seemed to bloom overnight, six rows of it, placed all the way to the ground, within reach of playing children or wandering dogs.

On the sidewalk where I stood in Nogales, Arizona, a storefront window displayed mannequin brides, dressed in white wedding dresses. Not 50 feet away, the coils of glinting wire expand like a lethal slinky.

It was morning, and the town of 20,000 was just beginning to wake up. Downtown in the shopping district, a garbage truck rumbled past, and Norteño music played from stereos outside of just-opening shops. Shuttle drivers congregated along the sidewalk, waiting for Tucson or Phoenix-bound passengers to fill their vans.

In November 2018, the Trump administration ordered that the wall at the Nogales port of entry be topped with concertina razor wire. Last week, more rows of wire were suddenly added to the Arizona side of the wall, and stretched much further than the immediate port of entry. And this time, the wire was placed all the way to ground level.

Concertina razor wire is a form of coiled barbed wire, first used in World War I. It gets its name from a musical instrument which much like an accordion has bellows that expand to produce its sound. It would be a pretty name, if it were not so dehumanizing and brutal an object.

Nogales residents alerted Mayor Arturo Garino, who said he was not told that more wire would be added. “Let me tell you,” he told Arizona Public Media, “They didn’t even have the courtesy to tell us they were doing this in the first place.” He requested to meet with federal officials to discuss the issue but was refused.

A unanimous vote by the Nogales City Council on Feb. 6 resulted in an official resolution demanding that the wire be removed from city limits.

“Concertina wire has sharp razor-like blades that are coiled [and] is designed to entangle its victim as the razors slice/cut deeply into the flesh and causes indiscriminate injury which can be fatal,” reads the resolution. “Placing coiled concertina wire that is designed to inflict serious bodily injury or death in the immediate proximity of our residents, children, pets, law enforcement and first responders is not only irresponsible but inhuman.”

Indeed, we could follow barbed wire backward in time and find it present during our worst moments as a nation. First patented in 1874 by Joseph Glidden, it was used by land grabbing homesteaders to corral their animals and section off land parcels across the indigenous-occupied West. Thus, Native Americans referred to barbed wire as “devil’s rope.”

(Debbie Weingarten/TalkPoverty)

Barbed and concertina razor wire have been used to ensnare unsuspecting men on battlefields in faraway places, to imprison Japanese-American families in World War II-era internment camps, to secure modern-day prisons which disproportionately incarcerate people of color. And surely, we have all seen photographs of emaciated children penned into Nazi concentration camps by such wire?

Now, it’s being used to further cut a city in two. For many residents, who have long called their city Ambos (“Both”) Nogales, the border between the U.S. and Mexico is a forced line separating what has historically been a single bi-national community. While in 1918 — after a misunderstanding resulted in a fatal cross-border gunfight — the two countries constructed a mutually agreed-upon fence, the barrier was porous and meant as a friendly method of keeping order. Residents were easily able to cross the border to visit family members or to shop, supporting the economy of both cities.

Fast-forward to the 1990s, when the Clinton administration adopted a border security policy called Operation Gatekeeper, which severely increased Border Patrol presence and turned the friendly line into a fortified wall, made from steel landing strips left over from the Vietnam War. Crossing the border became complicated, and in some cases, impossible. Some families were split up, no longer able to visit with one another.

So began the ritual of visits to the wall, to hold hands and talk between the slats. “Especially on weekends, it’s not uncommon to see people camped out in plastic chairs on the U.S. side, while loved ones in Mexico set up tables and lay out a family meal on the other,” wrote Arielle Ziontes in a 2017 article for the Nogales International.

But Ziontes described the installation of metal sheets of mesh along International Street at a popular meeting place, which reduced visibility and prevented families from being able to touch or hold hands.

Now with the addition of the concertina wire along the Nogales wall, any other meeting places have effectively been sabotaged.

No hand would dare reach through the dangerous tangle of razor wire.

As I stood on International Street, staring through the mesh where family members used to hold hands, I noticed a Border Patrol agent parked in the shade of the wall. He rolled down his window as I approached. I asked him about the wire — when it went up, who installed it, if it will be placed at ground level for the entirety of the wall. He shrugged. He didn’t know anything about infrastructure, he said; that’s not part of his job.

“Is it the National Guard’s?” I asked.

“I don’t know,” he said, and he rolled up the window.

If the Trump administration refuses to tear down the wire, Mayor Garino said he’s prepared to go to court. And it’s not just here in Nogales that officials are pushing back against federal directives to militarize the border. Just before President Donald Trump’s State of the Union speech, New Mexico’s Democratic Gov. Michelle Lujan Grisham ordered most of the National Guard troops stationed along the New Mexico border to withdraw from their posts, citing a “charade of border fear-mongering.”

In a speech on Feb. 12, California Democratic Gov. Gavin Newsom announced that he was withdrawing the 360 National Guard troops stationed at the Mexico-California border. “This border emergency is a manufactured crisis,” he said. “California will not be part of this political theater.”

After deploying additional troops to the southern border in November 2018, Trump spoke at a rally in Bozeman, Montana. “The Democrats want to invite caravan after caravan of illegal aliens to flood into your communities,” he told the crowd. And then he seemed to reassure them, saying, “We have our military on the border. And I noticed all that beautiful barbed wire going up today. Barbed wire used properly can be a beautiful sight.”

But from where I stood in Nogales, the wire was anything but beautiful. The metal coils caught the blinding glare of the sun, and the mid-morning light through the wall made shadows on the ground that looked like jail bars. Just yards away in Mexico, on the other side of the wire, children filed out into a schoolyard. I could see them dribbling a basketball, jumping rope. Their sing-song voices traveled over and through the wall.