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The 250-year legacy of slavery continues to permeate throughout contemporary United States. However, these days, the images we see are likely to be those of immigrants from the global South. Instead of state-sanctioned ownership and exploitation of workers inside the home or out in the fields, today’s federal government and most state regimes have largely failed to prevent the abuses and mistreatment of household employees and agricultural laborers.
Often described as “modern-day slavery,” human trafficking and exploitation are pervasive in domestic worker and farm worker industries. Trafficking in these industries is highly documented. According to a survey of domestic workers, the majority of live-in domestic workers work close to 60 hours per week, and almost 40 percent of domestic workers were not paid for their work or not paid on time. Meanwhile, almost 80 percent of farm workers are underpaid, and more than half of farm contractors violate the Migrant and Seasonal Agricultural Worker Protection Act, according to the National Employment Law Project.
The exclusion of these workers from basic legal protections, such as the Fair Labor Standards Act (FLSA) – “the most vital social legislation” in American history – renders them extremely vulnerable to mistreatment. These workers are also not protected by the National Labor Relations Act, Social Security Act, or the Occupational Safety and Health Act. Political compromises at the inception of these laws resulted in them not applying to former slaves. This means that immigrants who constitute a large number of workers in these industries today are being exploited. Limited-English proficiency and the lack of awareness of their rights or of knowledge about resources for help exacerbate their exposure to abuse. Furthermore, domestic workers tend to be women who work in private homes who can be more easily isolated by their employers from the outside world.
Aggravating the state of affairs for domestic workers and farm workers in the context of employment laws is the hard reality that current immigration laws harm these workers by reducing the little power they have in their employment. The recent cases of Baoanan v. Baja, Swarna v. Al-Awadi, and Sabbithi v. al Saleh all involve suits filed by domestic workers against former employers who were diplomats. In addition to the factors of vulnerability that already exist for domestic workers, employees in these households have the added layer of being dependent on their employers for their immigration status. The amicus brief of the Asian American Legal Defense and Education Fund (AALDEF) and the ACLU, and supported by the New York Anti-Trafficking Network (NYATN), documented the large number of cases, disparate power, and high vulnerability to severe exploitation that exists in diplomat households.
Guest worker programs, including those involving foreign migrants conducting seasonal agricultural work, need to be similarly scrutinized. These programs render seasonal workers dependent on their employers for their immigration status as well. Faced with the limited option of whether to complain about their working conditions or return to their countries of origin, these workers often end up enduring exploitative circumstances. Ongoing efforts for comprehensive immigration reform must include essential protections for workers, including farm workers.
Recent developments at the state level have helped to reduce the gap in legal protections. The United States’s first domestic worker bill of rights finally became law in New York in 2010 after years of relentless work by organizations such as Domestic Workers United. It provides for the very basic protections of overtime pay, time off, sick days, disability benefits, and protections from discrimination and sexual harassment. Other states, such as California, are working on their own domestic worker bills to supplement the federal government’s lack of protections in this area. However, there have been no similar legislative victories in the agricultural sector.
Employment laws that distinguish historically-slave industries from other forms of work should be eradicated once and for all. Almost 150 years after the end of the “peculiar institution,” the promise of the Thirteenth Amendment’s abolition of slavery and involuntary servitude requires more vigorous measures to protect all workers.
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