While federal labor laws protect workers from abuses by unscrupulous employers, they do not, in fact, protect all workers. This year, Oxfam added a new data point to its Best States to Work Index to indicate whether or not states have taken steps to cover these workers.
Today, in the United States, it’s legal for certain employers not to pay their employees minimum wage, or to ask their employees to work more than 40 hours a week and not provide overtime compensation. Some workers have no protection against sexual harassment in the workplace. Some workers are not guaranteed safety in the workplace. Some workers are not protected if they want to organize.
These are excluded workers, a class of employees the federal government specifically wrote out of protections. Millions of workers are left out of governmental protections. And this was done on purpose.
Who are these workers? Most of them are domestic workers and agricultural workers, millions of people laboring without basic rights and protections.
So, the people who harvest the food we eat, take care of our family members, and clean our houses do not enjoy the protections most workers do.
How did this happen?
The history of excluded workers is deeply racialized and illustrates the unfortunate history of labor rights in this country. When drafting federal legislation in 1935 on Social Security, which created the foundation for legislation on unionization (National Labor Relations Act, NLRA 1935) and worker protections (Fair Labor Standards Act, FLSA 1938), policymakers left out two crucial groups: agricultural workers and domestic workers.
Both groups were, at the time, disproportionately Black laborers, and both continue to be disproportionately represented by people of color today. Not only were these exclusions racialized, they were gendered too. Domestic workers were then, and continue to be, overwhelmingly women of color.
Southern politicians specifically pushed for the exclusion of farmworkers and domestic workers—based on their racial composition. While drafting the bill that would create the foundation of the US welfare system—one that would allow workers to retire with dignity, organize for rights, and enjoy basic mandates around wages and the work week—Southern legislators complained about the possible negative impact of extending rights to Black workers who were, at the time, working under Jim Crow. The fear that a welfare system could enable Black workers to leave or refuse work in fields, factories, and kitchens drove Southern congressmen to push for the exclusion of domestic workers and farmworkers.
When the Social Security Act was signed by President Roosevelt, the NAACP protested, “calling the new American safety net ‘a sieve with holes just big enough for the majority of Negroes to fall through,” writes Ta-Nehisi Coates in We Were Eight Years in Power. The exclusion of these workers, especially farmworkers, also bolstered the Jim Crow penal system’s “vagrancy” laws, which punished Black people who were not working with incarceration or forced labor on plantations, according to Michelle Alexander in The New Jim Crow: Mass Incarceration in the Age of Colorblindness.
Racialized labor laws didn’t stop with the New Deal; later legislation replicated the exclusions. The Civil Rights Act of 1964 left domestic workers without protections against discrimination or sexual harassment; the Occupational Health and Safety Act of 1970 left both groups without protections from work-based injury or safety standards.
What does this look like now?
There are in fact many types of “exempt” workers, specifically related to overtime protection. These include temporary or part-time workers: newspaper delivery people, people who work on sea vessels, seasonal amusement or recreation workers. And while these employees are not guaranteed the protections of a set work week, for example, the assumption is that the temporary nature of their employment sets them outside the parameters of traditional labor.
Farmworkers are still excluded from pieces of the FSLA. Also, most protections do not apply to farmworkers who work for small farms, and protections get murky when farmworkers are paid piecemeal and not by the hour. Farms with fewer than 10 full-time employees are excluded from essentially every worker protection provision (wages, child labor, working week), including those around health and safety. So, there are no standards for workers in those environments around the use of poisonous pesticides, heat or cold, or at-work injuries.
Farmworkers are still excluded from the NLRA. This means that though farmworkers can (and have!) organized, they do not enjoy the same legal protections as other workers.
Domestic workers are excluded from overtime pay and continue to be excluded from sexual harassment protections or workplace safety mandates, especially since they tend to work in private homes. Also, domestic workers who are categorized as “companion care workers” or individuals who are full time or live-in caregivers for elderly, injured, or disabled persons who cannot care for themselves, are excluded from protections around minimum wage.