Ending Racist and Sexist Exclusion of Caregivers from Critical Labor Standards in Washington
Jeremiah Miller - Legal Director, Janae Choquette - Staff Attorney, Emily Grove - Staff Attorney, and Alexis Rufi - Senior Paralegal, all at Fair Work Center
The Assurecare Workers’ Story
Caregivers providing long-term care in commercial settings are tasked with a responsibility critical to a compassionate society: protecting and caring for elderly and disabled people. This work is physically demanding and exposes caregivers to serious workplace injuries and illnesses. In fact, this kind of caregiving work is the ninth most dangerous occupation nationally, more dangerous than working in a steel foundry.
But, despite the high priority of their work and its inherent danger, live-in caregivers in the state of Washington may be paid shockingly subminimum wages without any access to state-mandated sick leave.
We first met our caregiver clients, Ms. Bolina, Mr. Payag, Ms. Ocampo, Ms. Robles, Mr. Castillo, and Mr. Villalobos, in 2022. They worked as live-in caregivers in several Adult Family Homes (AFHs) with ‘Assurecare’ branding, attending to up to six residents individually or with one other caregiver. AFHs provide round-the-clock care to elderly and disabled individuals, so caregivers often work 24-hour shifts without uninterrupted breaks or sleep. Caregivers provide personal care and companionship for residents, assisting residents in bathing, dressing, eating, moving about, taking medication, and attending appointments or events outside of the AFH. This care sometimes includes shifting immobile patients in bed to prevent pressure ulcers. Our clients’ work caused them to suffer musculoskeletal injuries and viral infections, including COVID-19.
Caregivers often work 24-hour shifts without uninterrupted breaks or sleep, providing personal care and companionship for residents.
The impact of these injuries and illnesses on these workers was worsened by their lack of access to sick leave. For their back-breaking labor, our clients were paid a flat daily rate regardless of how many hours they worked, amounting to as little as four dollars per hour with no overtime.
On March 24, 2023, the Fair Work Center helped these six workers file a lawsuit against Assurecare for failure to pay their full wages for all hours worked, missed rest breaks and meal periods, and significant overtime premiums. Critically, this case also seeks to close an unconstitutional loophole in the state’s labor laws that permits live-in workers to be mistreated. Without this relief, our clients’ rights to fair pay, breaks, and sick leave are in jeopardy.
How We Got Here
Washington is, in many ways, a national leader in protecting workers’ rights. However, the backbone of Washington’s labor laws, the Minimum Wage Requirement and Labor Standards Act (MWA), is fundamentally shaped by flawed federal laws. As such, it inexplicably excludes many categories of workers, including live-in workers such as caregivers, from various labor protections like minimum wage and overtime laws.
This exclusion derives from a shameful tradition in the United States denigrating the value of domestic work (including caregiving work). Our foundational labor laws often explicitly excluded work performed by non-white, non-male identifying people. The racist and sexist roots of the policy workers live with today extend back nearly a hundred years.
An unconstitutional loophole in the state’s labor laws permits live-in workers to be mistreated.
In the 1930s, responding to mass labor unrest, the federal government enacted groundbreaking worker protections in the form of various “New Deal” laws including the National Labor Relations Act, the Social Security Act, and the Fair Labor Standards Act. But these laws explicitly or implicitly excluded domestic workers and agricultural workers, which was part of a pattern of systematic and intentional exclusion of Black and female workers from all major New Deal legislation. After all, enslaved people had historically performed much of the agricultural and live-in domestic work in the United States without any pay at all.
As a tool for advancing the overtly discriminatory interests of southern states, the drafters of early labor laws used apparently non-discriminatory exemptions to the law that had the effect of excluding Black and female labor forces from worker protections. The goal was simple: maintain the existing social hierarchy and prevent Black and female workers from gaining political power. Echoes of these decisions were codified in Washington state law, with little or no discussion, in the 1960s.
For our clients, this means that their employers can create work conditions that would be illegal for most workers, including other caregivers who do identical work but do not live where they provide care. Wages of a few dollars per hour, no breaks, and no access to state-protected sick leave are conditions that no worker should face.
Update 10.16.24: The Current Status of Our Case and What Comes Next
In July of this year, we filed a motion for summary judgment on our claim that the “live-in” exemption violates the Washington Constitution and must be invalidated. Our clients provided harrowing and persuasive accounts explaining how dangerous and exhausting their work was. Among other things, highlightedthey:
“Lower back, hip and shoulder injuries that continue to this day,” “serious physical and mental health problems,” depression, sleep disorders and other short and long-term health problems.
Exposures to MRSA, COVID, hepatitis, and residents’ blood and bodily waste.
Verbal and physical abuse from combative residents.
We included overwhelming statistical evidence, including data showing that AFH workers’ rate of injury and illness is more than 70% higher than the rate for the healthcare industry in Washington as a whole, and about 78% higher than the rate for “all industry” covered by Washington’s workers’ compensation system.
Our expert, David C. Grabowski, Ph.D., a professor in the Department of Health Care Policy at Harvard Medical School, further reinforced our clients’ experiences working at AFHs. Based on his review of their statements, his own experience, and his understanding of the relevant research, he provided his expert opinion that work at AFHs was deeply dangerous for employees.
In response, Defendants conceded that the work was dangerous. Their own expert opined that the AFH industry is “largely led by women, who are tasked with bending, stooping, transferring, and managing patients with dementia and physical impairments [and] are going to get hurt.” And Defendants agreed that their business could only operate by underpaying their workers. Another defense expert witness stated that “[i]t would be cost- prohibitive for owners of [adult family homes] who employ live-in employees to comply with MWA due to the expense.”
On September 4, 2024, we received an order from the court granting our motion and finding the live-in exemption unconstitutional as applied to AFH live-in caregivers. The judge found that the job was dangerous, and, that because there was no explanation for the exemption, the Washington Constitution forbids excluding AFH live-in caregivers from the protection of the Minimum Wage Act. Importantly, the judge also acknowledged the racist and sexist origins of the exemption, especially as applied to individuals engaged in caregiving work.
Assurecare has filed a notice of appeal, so we will need to convince an appellate court of our position. If we are successful, our clients will have played an important role in expanding coverage of fundamental labor standards to many low wage workers. Indeed, as in the aftermath of Martinez-Cuevas, a win here ought to lead to broader legislative action nullifying the live-in exemption. Ultimately, we hope that the legislature will take a long, hard look at Washington’s labor protections and ensure that they are not unfairly denied to groups of workers on racist and sexist grounds.
The very idea that “living-in” somehow makes a worker less deserving of protection cannot be separated from the social, cultural, and political reasons why society devalues labor performed in the “domestic” sphere. It is time we shed the deeply racist and sexist thinking that never had any place in our country’s labor laws and certainly doesn’t today.