On January 1, gig workers in California woke up to a new year and a new labor law, but the same long-standing gender and racial dynamics that undercut employment protections.

Governor Gavin Newsom signed AB5 into law on September 18, 2019, extending formal labor protections to thousands of gig economy workers by restricting the use of independent contractor status. While AB5 is widely considered a win for workers, it does not close the gaps in labor protections for domestic workers who are primarily women, and women of color in particular, many of whom are immigrants. Domestic workers are still formally and informally excluded from wage, overtime, and workplace organizing protections, putting many in the same position as independent contractors.

Labor Regulations Miss Domestic Workers

AB5 codifies a 2018 California Supreme Court decision (Dynamex Operations West, Inc. v. Superior Court of Los Angeles) that ruled in favor of courier drivers who claimed they were misclassified as independent contractors. Misclassifying independent contractors enables employers to sidestep legal obligations such as providing minimum wage; paying into social security, workers’ compensation, and unemployment insurance; and abiding by anti-discrimination law and workplace health and safety regulations. Independent contractors are also excluded from workplace organizing protections such as the right to join or form a union.

The new law is aimed at regulating gig economy platforms like Uber, Lyft, Postmate, and Amazon, which threaten the stability of occupations in transportation and technology through the misuse of independent contractor status. The legal action taken to protect these occupations attests to their wide visibility as forms of work. However, gendered labor, such as domestic work, tends to be invisible, particularly when it is performed in private homes, which are assumed to be outside the reach of government regulation.

Gendered labor, such as domestic work, tends to be invisible, particularly when it is performed in private homes, which are assumed to be outside the reach of government regulation.

Moreover, many of the labor regulations that should apply to domestic workers were designed around the needs of the male industrial worker, which means they often fail to protect gendered workforces and workplaces that are structured much differently.

Domestic Work: The Original Gig Economy

While most of the attention to the Dynamex decision and AB5 has been on ridesharing platforms, these workers represent a small portion of the on-demand workforce compared to carework platforms such as Care.com and Sittercity that match clients with nannies, babysitters, elder caregivers, and even pet caregivers. In 2017 Uber had roughly 2 million drivers worldwide, while 9.9 million caregivers were registered with Care.com.

Domestic workers were originally excluded from the 1938 Fair Labor Standards Act (FLSA) which set federal minimum wage and overtime protections. Although Congress extended FLSA protections to domestic workers in 1974, this exclusion institutionalized racial and gender inequality in domestic work by rendering it informal, invisible, and unregulated. Today, live-in domestic workers and certain types of caregivers are still excluded from federal minimum wage and overtime protections. Furthermore, all domestic workers are still barred from workplace organizing.

Although domestic workers are entitled to many employee protections, in practice they often must negotiate the terms of their work with individual employers.

Although domestic workers are entitled to many employee protections, in practice they often must negotiate the terms of their work with individual employers.

Sites like Care.com and Sittercity offer information and paid services to help clients fulfill their obligations as household employers, but there is little oversight to ensure they do. A 2018 report by the International Nanny Association found that only 5.3% of US households employers fulfilled their payroll tax obligations. This suggests that almost 95% of household employers shifted the risks and expenses of Social Security, unemployment, workers’ compensation, and disability insurance onto domestic workers, similar to the way rideshare platforms shift these expenses onto independent contractors.

Many domestic workers are also informally excluded from overtime protections, health benefits, and anti-discrimination laws, because domestic work is structured differently than the industrial and office workplaces that labor laws are designed to regulate. Overtime protections apply to the hours an employee works for a single employer. Since domestic workers typically work for multiple employers, they will not receive overtime pay, even when they work more than 40 hours per week if the hours are divided among several workplaces.

Similarly, employer-sponsored healthcare is only mandated for full-time employees in workplaces with at least 50 employees. Domestic workers usually work part-time for multiple employers, either alone, or in a household with a small number of employees. Consequently, their employers are not responsible for providing health insurance.

Likewise, anti-discrimination protections only apply to workplaces with multiple employees. A 2017 report by the National Domestic Workers’ Alliance found significant racial pay stratification among domestic workers, with documentation status playing an especially prominent role. This suggests that current anti-discrimination law is not designed to address the forms of pay discrimination domestic workers experience in solitary workplaces.

New Economy, Old Labor Practices

Focusing on gendered and racialized occupations, like domestic work, shows that the gig economy is as much an extension of older labor practices as it is an invention of new ones. While the Dynamex decision and AB5 may bring important labor protections to workers in California’s gig economy, they will not improve labor practices for domestic workers and others whose work is not at the center of labor policy debates.

While the Dynamex decision and AB5 may bring important labor protections to workers in California’s gig economy, they will not improve labor practices for domestic workers and others whose work is not at the center of labor policy debates.

Effective labor protections for domestic workers will require labor regulations and enforcements built around the realities of workers in private homes and other venues often overlooked as workplaces. Even more importantly, it will require a broader shift in the way domestic work, both paid and unpaid, is valued and distributed.