Smith Makes Case for Regulating Care Work at Installation as Nagel Professor

Peggie R. Smith, the newly appointed Charles F. Nagel Professor of Employment & Labor Law, made an impassioned call for greater regulation of domestic work worldwide during her installation address on “Regulating Care Work.”

“In a world where work is supposed to be the ‘golden ticket’ to various protections and benefits that will promote our economic and social well-being as well as our health and safety, domestic workers are cast aside, rendered invisible, and denied the workplace rights that so many take for granted,” Smith said.

As many as 100 million people around the world are domestic workers, a group that federal law in the United States defines to include home care workers who provide in-home care for elderly and/or disabled individuals. However, that number is declining while the number of people needing care is growing, Smith said.  Low pay, no overtime pay, long hours, and a lack of benefits like healthcare will add to the challenge of meeting future home care needs.

“For some time now we have dealt with this problem by intensifying efforts to offload home care onto the weary shoulders of low-paid workers, especially immigrant workers,” she continued. “This safety valve of low-wage labor has allowed us to postpone the impending care crisis and has stifled serious contemplation of how we should equitably regulate and organize the provision of care.”

Part of the problem is that society has “failed to conceptualize domestic work as a legitimate occupation,” Smith said.  Compared to most workers, who leave their private homes each morning to enter the public world of work, domestic workers labor in isolation within the homes of private families, where regulators have traditionally hesitated to intervene.  Smith added: “The law has yet to envision domestic workers as workers who have needs apart from those of the families for whom they labor.”

However, at the global level, Smith sees reason for hope in the International Labour Organization’s (ILO) Convention on Decent Work for Domestic Workers. Signed last year by countries ranging from Australia to Brazil and South Africa, the treaty will make domestic workers less vulnerable to exploitation.

Ironically, while delegates from the United States played a leading role in rallying support for the ILO Convention and advocating strong protections on behalf of domestic workers, Smith says that she has “no illusions that the United States will ratify the Convention.” For its part, the United States addressed the rights of home care workers in a 1974 amendment to the 1938 Fair Labor Standards Act.  But Congress included a “companionship exemption” in the amendment, which excludes workers who provide “companionship services” to the elderly or disabled. That leaves out vast numbers of home care workers.

The U.S. Supreme Court upheld the companionship exemption in its 2007 ruling in Long Island Care at Home vs. Coke.  Last year, the Obama Administration proposed new regulations to extend coverage to home caregivers who work for third-party home-care companies like the one at issue in Long Island Care at Home.  However, the home care industry is fighting the new regulations as being too costly.

“Yet the industry fails to appreciate the close connection between quality home care and the economic status of the home-care workforce,” Smith said. “The evidence suggests that not providing protection may be even more costly.  Home-care workers are exiting the job—and, as a result, the quality of care is suffering—precisely because of the job’s poor working conditions, including a lack of basic labor and employment rights.”

One positive development Smith has seen in the United States is the public funding provided at the state level to compensate family members who care for their elderly relatives in the home. However, Smith is concerned that when the relationship between family members is defined as one between “employer” and “employee,” the result may be a “loss of solidarity” between familial home care givers and their nonfamilial peers.  Because familial care workers may be more motivated by “love” than “money,” they might be less inclined to take actions like forming a union, which could benefit all caregivers.

“I believe that love and money can coexist, but I am skeptical about which motivation will endure when the ‘employer’ is a worker’s own mother,” added Smith.

Introducing Smith at the installation ceremony was Dorothy Roberts, the Kirkland & Ellis Professor of Law at Northwestern Law School. Also making remarks were Dean Kent Syverud and Provost Edward Macias.

Smith, a member of the Faculty Advisory Board for the law school’s Center for the Interdisciplinary Study of Work & Social Capital, also serves on the Executive Committee and as secretary of the Labor Law Group, a national organization of leading scholars in labor and employment law. She is on the editorial board of the Employee Rights and Employment Policy Journal and on the Executive Committee of the Association of American Law Schools Section on Labor Relations and Employment Law. Finally, Smith is the author of the authoritative, one-volume treatise on employment law.

The Nagel professorship was established through the estate of Daniel Noyes Kirby, who received his bachelor’s degree in 1886 and his law degree in 1888, both from Washington University. He was a member of the Washington University Corporation (the predecessor to the Board of Trustees), lecturer in the Law Department (the predecessor to the law school), and a prominent St. Louis lawyer during his 57 years in practice. Kirby’s estate also currently provides for two other professorships at the law school, the Charles Nagel Professor of Constitutional Law & Political Science and the Charles Nagel Professor of Public Interest Law & Public Service.