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Obama Just Changed the Most Racist Law in America

David Callahan

For the back story of why newly announced protections for home care workers is so needed, we have to go back 75 years.

You may have missed it, but yesterday President Obama dramatically altered one of the most racially damaging laws in America when the Department of Labor announced that it would extend minimum wage and overtime protections to home care workers. 

To say there's a backstory here would be a wild understatement. 

Seventy-five years ago, Franklin Roosevelt achieved a historic victory -- but a morally compromised one -- when he signed the Fair Labor Standards Act of 1938. The law created the modern labor regulations that we're all familiar with today, including the minimum wage, overtime pay, and much more. 

Yet getting the FLSA passed entailed a major concession to southern Democrats, who successfully fought to exclude agricultural and domestic workers. Why? Because, as law scholar Juan Perea has shown in his illuminating history of the law, that exclusion was seen as crucial to preserving a southern way of life that hinged on exploiting cheap African-American labor -- both in the fields through a sharecropper system not much different than slavery and in homes, where black domestic workers played much the same role they did in Antebellum times. 

Given this history, you would think that Fair Labor Standards Act would have been amended long ago to ensure that all American workers --  but especially those most vulnerable to exploitation -- would be protected by federal law. 

And you'd be a least partly right. Thanks to Cesar Chavez, the law was amended in 1966 to include some agricultural workers and again in 1983 to offer better protections to migrant farm workers. However, to this day, the protections for agricultural workers aren't as strong as those for other other workers. As the National Farm Workers Ministry explains, under the FLSA: "farm workers have no right to overtime pay, workers on small farms are not entitled to receive minimum wage, and children as young as twelve are legally allowed to work in the fields." In addition, the National Labor Relations Act still exempts farm workers from protections around the right organize and bargain collectively. 

Additional changes to the FLSA in the mid-1970s extended the law's protections to include domestic workers, but with a gigantic loophole: "companionship workers" were still not covered. And that category included many of the very domestic workers that Jim Crow-era legislators wanted to remain unprotected from federal law, including nannies, housekeepers, and companions for the aged. 

Like farm workers, domestic workers are also still not protected by the NLRA -- or by the Occupational Health and Safety Act. Never mind that the right to collective bargaining is recognized worldwide as a basic human right and our own State Department annually critiques how well foreign countries uphold this right. 

As was the case 75 years ago, a huge share of the people who work in the domestic and agricultural sectors are nonwhite. They rank among the most poorly paid and impoverished workers in America -- a fact that was also true in the 1930s. 

In other words, exclusions to federal law demanded by yesterday's white supremicists time continue, today, to inflict what Juan Perea terms "racially-identified harm." In fact, it's hard to think of an existing federal legal regime that has clearer origins in racist ideology and has a bigger negative impact on the lives of people of color in the present moment. 

A few states have recently taken steps to correct this historic wrong, including New York which passed a Domestic Workers' Bill of Rights in 2010. Last week California's Senate passed a similar bill, which labor activists are pressing Brown to sign (he vetoed an earlier similar measure.) 

The Obama Administration's action in this area yesterday doesn't come close to fully addressing the range of exclusions from federal labor law that disproportionately affect workers of color. But it's a big step in the right direction.