Throwing the baby out with the bathwater

In a clear case of discrimination against the disabled, the sick, the elderly, the infirm, not to mention working mothers, the Department of Homeland Security has, in its recently issued Transitional Worker Classification Final Rule, arbitrarily and totally disenfranchised some 950 contract workers. By requiring that domestic helpers, caregivers, maids, houseworkers be employed indirectly, through a “legitimate” business, DHS has, not to mix metaphors, thrown the baby out with the bathwater, failing to make a distinction between the cases of abuse cited by commentators on the Rule and the very real, legitimate need for such contract workers in the community.

According to the Rule, as it appeared in the Federal Register, “there is evidence that directly-employed [domestic] workers have been subject to widespread abuse and have been victims of human trafficking…DHS believes that the CNRA transitional worker provisions were intended to…combat such abuses. As such, this final rule limits eligibility to petition for a CW worker to a legitimate business…DHS believes that this provision regarding legitimate businesses will combat such abuse by providing workers protection from such direct employment.”

That’s an admirable goal. But the implementation discriminates against responsible employers who have legitimate need of the services of such domestic workers. No other category of employer is similarly restricted in the Rule.

Was there any count of those who employ caregivers because they are no longer able to carry on their lives without help in preparing meals, shopping, cleaning house, bathing? Was there any count of those who employ “nannies” because the parent(s) is/are working, and there is no one to care for younger children? Was there any count of those who need help in caring for the elderly or infirm or the disabled? Can one honestly say that all of these were abusers? If not, how many? What percentage? What about the rest, the non-abusers?????

As the Rule now stands, each of these employers is now required either to establish him/herself as a “legitimate” business-with all the bureaucratic red tape affiliated thereto, such as applying for a license, filing quarterly BGR reports, etc., etc.,-or use an employment agency, to obtain domestic help. In either case, this entails an added cost: fees and charges s/he did not have to pay prior to the implementation of the Rule (more discrimination).

In addition, if the applicant uses an employment agency, it is not at all clear that s/he can ensure that the domestic worker who had been working for him/her will be able to continue doing so (again, unequal treatment).

This will cause a major hardship to many people who can least afford it. To cite my own example, I live on a fixed income. I am 80 years old, have emphysema and lung cancer (currently in remission) and am no longer able to do all the work required to keep my house clean, my laundry washed, my errands run, by myself. While I currently employ a housekeeper only one day a week, earlier this year, when I was much weaker, the housekeeper came four days a week, and cooked many of my meals as well. I can hardly afford the housekeeper, much less the fees I would have to pay to an employment agency under this rule, or, as a business, to the Department of Commerce and to DHS. And how can I make sure that the employment agency will send me the housekeeper who has now been taking care of me for nearly a year, and with whom I have established a rapport and good working relationship? I don’t want to have to start all over, and re-adjust to someone new.

I don’t know where solution lies. Certainly not in the local Legislature’s re-definition of what constitutes a legitimate business-I don’t want all the trappings that would entail! Best would be an amendment to the federal rules, but given DHS’ dilatory performance on getting these rules out, it wouldn’t appear that there is much hope there. Ideal would be the establishment of a reviewing function within the existing bureaucracy somewhere that could certify employers of domestic workers as non-abusive, who, once certified, could then hire the domestic worker of their choice. Off-the-wall? Agreed. Prone to abuse? Also agreed. But there’s got to be a way, somewhere! This discrimination should not be allowed to stand.

Ruth L. Tighe
Tanapag Village