Improving How Domestic Workers and Their Employers Settle Disputes

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Analysis Law and Policy

Improving How Domestic Workers and Their Employers Settle Disputes

Sheila Bapat

The Brazilian Immigrant Center has launched a first-of-its-kind mediation program that seeks to resolve disputes between domestic workers and their employers. So far, it seems to be working.

The Brazilian Immigrant Center, just outside of Boston, has launched a first-of-its-kind mediation program that seeks to resolve disputes between domestic workers and their employers. All five mediated disputes that the group has taken on so far have been resolved.

The domestic workers’ movement is gaining traction nationally, with multiple states introducing legislation to codify labor protections for this population of workers. To date, state legislation and litigation have been the primary strategies employed by domestic workers’ advocates for redressing unpaid wages and improving labor conditions, but if the Brazilian Immigrant Center’s program continues to succeed, mediation may become a more popular resolution method for domestic worker-employer disputes. And beyond its potential to resolve disputes, the program illustrates another way in which the domestic workers’ movement is expanding domestic workers’ leadership potential.

Mediation is a method of alternative dispute resolution that, in theory, encourages open communication between disputing parties. Neutral mediators help litigants resolve their disputes at a time and place that works for all parties. Depending on the type of dispute, mediation is not always effective, particularly when the parties involved would prefer to litigate so they have a chance at winning their entire claim. Mediation necessarily involves compromise. It is often built into typical employment suits.

The Brazilian Immigrant Center’s program shows that disputes between domestic workers and their employers may be a good fit for mediation. Given the deeply personal nature of domestic work, which often involves caring for children and the elderly, cooking, and living with families, the disputes can be very personal as well. Therefore, a resolution process that fosters open discussion is useful, as Lydia Edwards, director of legal services at the Brazilian Immigrant Center, told Rewire.

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“Domestic work is a unique industry with a different kind of employer-employee relationship that is as personal as it is legal,” Edwards said. “The issues are often very hurtful, personal issues related to respect and abuse and general workplace treatment inside of someone’s home. It’s not always cut-and-dry, like, ‘You didn’t pay me.’”

Over the last two years, the Brazilian Immigrant Center has litigated 50 cases between domestic workers and their employers, and 10 percent of those have been resolved through mediation.

The center’s mediation program dispatches two-person teams—one worker and one employer—to mediate the disputes. “The worker-employer relationship is so symbiotic. One doesn’t exist without the other,” Edwards told Rewire. “And it is a matter of keeping the process neutral too.”

This mediation program’s model enables the disputing parties to avoid expensive litigation, which is particularly important since domestic workers often earn minimum-wage salaries and a court date could force a worker to miss work. Mediation also gives litigants more control over when the mediation may take place, whereas court dates are typically dictated by a judge. And mediation is generally subject to confidentiality agreements between the parties, whereas court documents are a matter of public record.

In the five cases resolved through the center’s mediation program, the domestic workers never litigated a suit against their employers in court.

Some legal aid providers caution that mediation may not always be appropriate to resolve domestic worker-employer disputes without litigation.

“From our experience with cases in which workers’ rights have been violated, it is clear that many employers need litigation to give them the incentive to meaningfully engage in mediation,” said Hollis Pfitsch, staff attorney with the Legal Aid Society of New York.

Pfitsch also believes mediation works best when the employer and employee have committed to a collective bargaining process and a contract that has ensured that basic standards have already been met. One study of success rates in the U.S. Postal Service’s mediation program shows that mediation is effective when employees are unionized. However, domestic workers are currently not covered by federal collective bargaining law or most states’ collective bargaining laws.

Beyond just the potential to resolve worker-employer disputes, including domestic workers in the process as mediators has been an innovative way of developing workers’ leadership and career skills. The majority of these workers are immigrant women, and many have earned college degrees in their home countries but fell into domestic work in the United States due to language barriers or because they may be undocumented.

Sona Soares is a career domestic worker who has been trained to serve as a volunteer mediator in the Brazilian Immigrant Center’s program. Soares was raised in Brazil, where she earned degrees in mechanical engineering and math. She moved to the United States at age 22, fell in love, married, and had a baby. Her husband abandoned Soares when her son was 19 days old.

“Becoming a domestic worker often results from a lack of options and necessity. I had to take care of my son,” Soares said. “And I had steady work as a housekeeper and nanny.”

She said that over the past 28 years she’s worked as a domestic worker, she has worked for kind employers as well those who have treated her poorly.

“Sometimes you go home and cry a little,” she said. “And the next day you get up and go to work again.”

After several years volunteering with the Brazilian Immigrant Center as a volunteer interpreter, Soares participated in the mediation training program along with about 20 other domestic workers and employers.

“There’s not always enough attorneys to go around, plus there’s this untapped talent that immigrant women have,” Edwards said. “Many workers like Sona Soares have college degrees from the U.S. or other countries that they aren’t using. So we felt that here’s this untapped potential and there’s tons of disputes that need to be resolved.”