[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
FROM EXCLUDED TO ESSENTIAL: TRACING
THE RACIST EXCLUSION OF FARMWORKERS,
DOMESTIC WORKERS, AND TIPPED WORKERS
FROM THE FAIR LABOR STANDARDS ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON
WORKFORCE PROTECTIONS
of the
COMMITTEE ON EDUCATION AND LABOR
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MAY 3, 2021
__________
Serial No. 117-10
__________
Printed for the use of the Committee on Education and Labor
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: edlabor.house.gov or www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
44-532PDF WASHINGTON : 2022
COMMITTEE ON EDUCATION AND LABOR
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
RAUL M. GRIJALVA, Arizona VIRGINIA FOXX, North Carolina,
JOE COURTNEY, Connecticut Ranking Member
GREGORIO KILILI CAMACHO SABLAN, JOE WILSON, South Carolina
Northern Mariana Islands GLENN THOMPSON, Pennsylvania
FREDERICA S. WILSON, Florida TIM WALBERG, Michigan
SUZANNE BONAMICI, Oregon GLENN GROTHMAN, Wisconsin
MARK TAKANO, California ELISE M. STEFANIK, New York
ALMA S. ADAMS, North Carolina RICK W. ALLEN, Georgia
MARK De SAULNIER, California JIM BANKS, Indiana
DONALD NORCROSS, New Jersey JAMES COMER, Kentucky
PRAMILA JAYAPAL, Washington RUSS FULCHER, Idaho
JOSEPH D. MORELLE, New York FRED KELLER, Pennsylvania
SUSAN WILD, Pennsylvania GREGORY F. MURPHY, North Carolina
LUCY Mc BATH, Georgia MARIANNETTE MILLER-MEEKS, Iowa
JAHANA HAYES, Connecticut BURGESS OWENS, Utah
ANDY LEVIN, Michigan BOB GOOD, Virginia
ILHAN OMAR, Minnesota LISA C. Mc CLAIN, Michigan
HALEY M. STEVENS, Michigan DIANA HARSHBARGER, Tennessee
TERESA LEGER FERNANDEZ, New Mexico MARY E. MILLER, Illinois
MONDAIRE JONES, New York VICTORIA SPARTZ, Indiana
KATHY E. MANNING, North Carolina SCOTT FITZGERALD, Wisconsin
FRANK J. MRVAN, Indiana MADISON CAWTHORN, North Carolina
JAMAAL BOWMAN, New York, Vice-Chair MICHELLE STEEL, California
MARK POCAN, Wisconsin JULIA LETLOW, Louisiana
JOAQUIN CASTRO, Texas Vacancy
MIKIE SHERRILL, New Jersey
JOHN A. YARMUTH, Kentucky
ADRIANO ESPAILLAT, New York
KWEISI MFUME, Maryland
Veronique Pluviose, Staff Director
Cyrus Artz, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
ALMA S. ADAMS, North Carolina, Chairwoman
MARK TAKANO, California FRED KELLER, Pennsylvania,
DONALD NORCROSS,New Jersey Ranking Member
PRAMILA JAYAPAL, Washington ELISE M. STEFANIK, New York
ILHAN OMAR, Minnesota MARIANNETTE MILLER-MEEKS, Iowa
HALEY M. STEVENS, Michigan BURGESS OWENS, Utah
MONDAIRE JONES, New York BOB GOOD, Virginia
JOHN A. YARMUTH, Kentucky MADISON CAWTHORN, North Carolina
ROBERT C. ``BOBBY'' SCOTT, Virginia MICHELLE STEEL, California
VIRGINIA FOXX, North Carolina (ex
officio)
C O N T E N T S
----------
Page
Hearing held on May 3, 2021...................................... 1
Statement of Members:
Adams, Hon. Alma S., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Keller, Hon. Fred, Ranking Member, Subcommittee on Workforce
Protections................................................ 4
Prepared statement of.................................... 5
Statement of Witnesses:
DeCamp, Paul, Member, Epstein Becker & Green, PC............. 36
Prepared statement of.................................... 39
Dixon, Rebecca JD, MA, Executive Director, National
Employment Law Center...................................... 8
Prepared statement of.................................... 10
Romero, Teresa, President, United Farm Workers............... 52
Prepared statement of.................................... 54
Yoon, Haeyoung, JD, Senior Policy Director, National Domestic
Workers Alliance........................................... 61
Prepared statement of.................................... 64
Additional Submissions:
Chairwoman Adams:
Prepared statement from Oxfam America.................... 97
Article: ``Why millions of workers in the US are denied
basic protections'', Oxfam America..................... 99
Fact Sheet: ``Why the US needs a $15 minimum wage'', EPI/
NELP................................................... 104
Letter from Farmworker Justice........................... 115
Article: ``Tipping Is a Legacy of Slavery'', The New York
Times,
February 5, 2021....................................... 119
Article: ``The Racist History of Tipping'', Politico,
July 17, 2019.......................................... 123
Article: ``The Restaurant Industry Ran a Private Poll on
the
Minimum Wage. It Did Not Go Well for Them'', The
Intercept, April 17, 2018.............................. 127
Mr. Keller:
Letter from the National Restaurant Association dated May
3, 2021................................................ 136
Letter from American Hort dated May 3, 2021.............. 137
Letter from the American Farm Bureau dated April 30, 2021 141
Letter from Joshua Chaisson, President, Restaurant
Workers of America..................................... 144
Letter from Valerie Torres, Secretary, Restaurant Workers
of
America................................................ 146
Letter from Valerie J. Graham dated May 3, 2021.......... 150
Omar, Hon. Ilhan, a Representative in Congress from the State
of
Minnesota
Fact Sheet: ``One Fair Wage: Women Fare Better in States
with Equal Treatment for Tipped Workers'', National
Women's Law Center..................................... 152
Questions submitted for the record by:
Chairwoman Adams
Ms. Omar................................................. 164
Responses to questions submitted for the record by:
Ms. Dixon................................................ 157
Ms. Romero............................................... 165
Ms. Yoon................................................. 171
FROM EXCLUDED TO ESSENTIAL: TRACING
THE RACIST EXCLUSION OF FARMWORKERS,
DOMESTIC WORKERS, AND TIPPED WORKERS
FROM THE FAIR LABOR STANDARDS ACT
----------
Monday, May 3, 2021
House of Representatives,
Subcommittee on Workforce Protections,
Committee on Education and Labor,
Washington, DC.
The Subcommittee met, pursuant to notice, at 12 p.m., via
Zoom, Hon. Alma Adams (Chairwoman of the Subcommittee)
presiding.
Present: Representatives Adams, Takano, Norcross, Jayapal,
Omar, Stevens, Jones, Yarmuth, Keller, Stefanik, Owens, Good,
Cawthorn, and Steel.
Staff present: Rashage Green, Director of Education Policy;
Christian Haines, General Counsel; Sheila Havenner, Director of
Information Technology; Eli Hovland, Policy Associate; Eunice
Ikene, Labor Policy Associate; Ariel Jona, Policy Associate;
Richard Miller, Director of Labor Policy; Max Moore, Staff
Assistant; Mariah Mowbray, Clerk/Special Assistant to the Staff
Director; Udochi Onwubiko, Labor Policy Counsel; Kayla
Pennebecker, Staff Assistant; Veronique Pluviose, Staff
Director; Banyon Vassar, Deputy Director of Information
Technology; Cyrus Artz, Minority Staff Director; Courtney
Butcher, Minority Director of Member Services and Coalitions;
Rob Green, Minority Director of Workforce Policy; Georgie
Littlefair, Minority Legislative Assistant; John Martin,
Minority, Minority Workplace Policy Counsel; Hannah Matesic,
Minority Director of Operations; Audra McGeorge, Minority
Communications Director; and John Witherspoon, Minority
Professional Staff Member.
Chairwoman Adams. Good afternoon. I'd like to call the
Subcommittee on Workforce Protections to order. Today we are
gathered to examine the racist origins of denying farm workers,
domestic workers and tipped workers full protection under the
Fair Labor Standards Act and to chart a path forward, a path
toward finally addressing these inequities.
The Fair Labor Standards Act or FLSA is one of our Nation's
most significant labor laws, first passed in 1978 it created
the Federal minimum wage, set limits on work hours and banned
oppressive child labor. Yet after more than 80 years the FLSA
still includes aspects of our Nation's history of slavery and
racial discrimination by expressly denying farm workers,
domestic workers and tipped workers the full protections of
basic wage and hour protections.
Following the abolition of slavery, black Americans, the
majority of whom lived in the south were concentrated in
agricultural and domestic jobs with little to no pay in order
to preserve the profitable return that had been built on the
backs of slaves.
By the time President Franklin D. Roosevelt opposed what
would become the FLSA he knew that certain lawmakers who held
the levers of power in Congress were committed to denying black
workers the wage protections that could lead to their economic
and social freedom.
Roosevelt acquiesced to the demands of these lawmakers by
excluding specific occupations that were over-represented by
black works from the labor protection. Thus, to ensure its
passage and to allow employers to underpay black Americans, the
FLSA excluded agricultural and domestic workers. In other
words, by excluding jobs held by black and brown workers from
basic worker protections, the FLSA inserted institutional
racism into a Federal wage an hour law.
And these exclusions robbed workers of color of economic
security over the next three decades. I know this because I've
lived it. In fact, my mother and grandmother were domestic
workers. They cleaned other people's houses, so I would not
have to, so that I could focus on going to school, getting a
good education and security a future I desired.
Unfortunately, I saw first-hand how impossible it was for
them to make ends meet and how impossible it was for them to
cover basic necessities, let alone live comfortably. Throughout
the 1960s and 70s Congress took limited steps to expand FLSA
protection, responding to the demands of the 1963 march on
Washington for jobs and freedom.
The attention brought to the issue by the 1965 California
Great Strike and the advocacy work from Civil Rights groups,
women's organization and labor unions, expanding coverage to
industries with high concentrations of black workers, including
agriculture, hotels and restaurants, helped narrow the racial
gap, wage gap and significantly boost the wages for millions of
workers.
Similarly, the tipped minimum wage is also wounded in
denying black workers economic security. Post-Civil War
formerly enslaved black workers were denied wages and
hospitality jobs and instead worked for tips. And while tipped
workers were originally excluded entirely from the FLSA, later
amended extending coverage to these workers codified the
practice of allowing employees to rely on consumer's tips to
subsidize wages.
And while there's been important progress, some racist FLSA
exclusions are still on the books and continue to prevent
people of color who remain over-represented in these jobs from
getting the pay they deserve.
Today farm workers will do not have overtime protection,
live-in domestic workers still don't have overtime protections,
and tipped workers are still not guaranteed the Federal minimum
wage, but today's hearing is not just about reviewing the
history of the American labor laws, it's about recognizing the
multi-generation's struggle of black workers and workers of
color, and confronting our country's legacy of racism so that
we can forge a more equitable future.
And many of my Committee colleagues have spearheaded
efforts to correct these decades-old inequities, including
Representative Grijalva's Fairness for Farmworkers Act, which
would phaseout overtime exemptions for agriculture workers.
Representative Jayapal's Domestic Workers Bills of Rights,
which among other things would eliminate the overtime exemption
for live-in domestic workers.
And Chairman Scott raised the Wage Act, which would
gradually phaseout the tipped minimum wage. We know that
several states have extended these key protections to workers
and their economies have continued to thrive.n
And of course no one could speak more authoritatively on
institutional racism than the people who experience it each
day, so I'm grateful that we're joined by three women of color
to help guide our discussion, and I want to thank them for
being with us.
[The statement of Chairwoman Adams follows:]
Statement of Hon. Alma S. Adams, Chairwoman, Subcommittee on
Workforce Protections
Today, we are gathered to examine the racist origins of denying
farmworkers, domestic workers, and tipped workers full protections
under the Fair Labor Standards Act and to chart a path toward finally
addressing these inequities.
The Fair Labor Standards Act, or FLSA, is one of our Nation's most
significant labor laws. First passed in 1938, it created the Federal
minimum wage, set limits on work hours, and banned oppressive child
labor. Yet, after more than 80 years, the FLSA still includes aspects
of our Nation's history of slavery and racial discrimination by
expressly denying farmworkers, domestic workers, and tipped workers the
full protections of basic wage and hour protections.
Following the abolition of slavery, Black Americans, a majority of
whom lived in the South, were concentrated in agricultural and domestic
jobs--with little to no pay--in order to preserve the profitable
economy that had been built on the backs of slaves.
By the time President Franklin D. Roosevelt proposed what would
become the FLSA, he knew that certain lawmakers who held the levers of
power in Congress were committed to denying Black workers the wage
protections that could lead to their economic and social freedom.
Roosevelt acquiesced to the demands of these lawmakers by excluding
specific occupations that were overrepresented by Black workers from
labor protections.
Thus, to ensure its passage and allow employers to underpay Black
Americans, the FLSA excluded agricultural and domestic workers.
In other words, by excluding jobs held by Black and Brown workers
from basic worker protections, the FLSA, inserted institutional racism
into Federal wage and hour law.
And these exclusions robbed workers of color of economic security
over the next three decades. I know this because I have lived it. In
fact, my mother and grandmother were domestic workers. They cleaned
other peoples' houses so I would not have to--so I could focus on going
to school, getting a good education and securing a future I desired.
Unfortunately, I saw first-hand how impossible it was for them to make
ends meet and how impossible it was for them to cover basic
necessities, let alone live comfortably.
Throughout the 1960s and 70s, Congress took limited steps to expand
FLSA protections, responding to the demands of the 1963 March on
Washington for Jobs and Freedom, the attention brought to the issue by
the 1965 California grape strike, and the advocacy work from civil
rights groups, women's organizations, and labor unions.
Expanding coverage to industries with high concentrations of Black
workers, including agriculture, hotels, and restaurants, helped narrow
the racial wage gap and significantly boosted wages for millions of
workers.
Similarly, the tipped minimum wage is also rooted in denying Black
workers economic security. Post-Civil War, formerly enslaved Black
workers were denied wages in hospitality jobs and, instead, worked for
tips. And while tipped workers were initially excluded entirely from
the FLSA, later amendments extending coverage to these workers codified
the practice of allowing employers to rely on consumers' tips to
subsidize wages.
While there has been important progress, some racist FLSA
exclusions are still on the books and continue to prevent people of
color, who remain overrepresented in these jobs, from getting the pay
they deserve.
Today, farmworkers still do not have overtime protections. Live-in
domestic workers still do not have overtime protections. And tipped
workers are still not guaranteed the full Federal minimum wage.
But today's hearing is not just about reviewing the history of
American labor law. It's about recognizing the multi-generational
struggle of Black workers and workers of color and confronting our
country's legacy of racism so that we can forge a more equitable
future.
Many of my Committee colleagues have spearheaded efforts to correct
these decades-old inequities, including:
Representative Grijalva's Fairness for Farm Workers Act,
which would phaseout overtime exemptions for agricultural
workers;
Representative Jayapal's Domestic Workers Bill of Rights
Act, which, among other things, would eliminate the overtime
exemption for live-in domestic workers; and
Chairman Scott's Raise the Wage Act, which would gradually
phaseout the tipped minimum wage.
We know that several states have extended these key protections to
workers and their economies have continued to thrive.
Of course, no one can speak more authoritatively on institutional
racism than the people who experience it each day. I am grateful we are
joined by three women of color to help guide our discussion. And I want
to thank them for being with us.
______
Chairwoman Adams. I'd like right now to recognize the
Ranking Member Keller for the purpose of making an opening
statement. Mr. Keller?
Mr. Keller. Thank you, Madam Chair. I appreciate the
opportunity to be with everyone this morning. As the foundation
of our Nation's wage and hour protections, the Fair Labor
Standards Act, FLSA, affects nearly every workplace across the
country. However, our world looks very different now than it
did 83 years ago when the FLSA became law.
The nature of work in the United States and by extension,
the American workforce has also changed. These changes matter
and have very real implications for today's workforce. This
fundamental transformation in the workplace has brought about
technological advances that are enabling a diverse population
to balance professional and personal needs in ways that were
unheard of in the 1930's.
While these developments are encouraging, unfortunately
there is a rapidly growing disconnect between Federal standards
and the needs of a vast majority of working Americans in the
21st Century. Committee Republicans have long championed
necessary updates to labor and employment policies that help
American workers and business owners compete in a global
economy.
We stand ready to work in a bipartisan manner to modernize
the FLSA to meet the--ever-evolving needs of a workforce that
increasingly desires flexibility, choice, and mobility.
Unfortunately, the misguided proposals before us today fail to
address the needs of the modern workforce and will ultimately
harm the very individuals my colleagues on the other side of
the aisle claim to help.
A radical mandated wage policy, and one size fits all
regulations will lead to fewer employment opportunities, less
economic freedom, restricted hours for workers, and more
aggressive use of automation. All while threatening our
economic recovery from COVID-19.
Congress can either consider policies which incentivize job
creators to continue employing American workers and create new
pathways for innovation and entrepreneurship where we can
double down on out of date policies resulting in unemployment.
As states continue to relax COVID-19 restrictions, and
businesses continue to reopen safely, now is the time to
consider pro-growth policies that reflect the needs of our
modern economy and workforce, and create more economic freedom
and independence.
Unfortunately, today's hearing will not help further
productive discussion about how we can foster an environment to
create better, higher paying jobs without costly one-size-fits-
all government mandates that ignore industry-specific needs,
and the resources available to small business owners.
I would like to thank all of our witnesses for joining us
today, and Madam Chair I yield back.
[The statement of Ranking Member Keller follows:]
Statement of Hon. Fred Keller, Ranking Member, Subcommittee on
Workforce Protections
As the foundation of our Nation's wage and hour protections, the
Fair Labor Standards Act (FLSA) affects nearly every workplace across
the country.
However, our world looks very different now than it did 83 years
ago when the FLSA became law.
The nature of work in the United States and by extension, the
American workforce, has also changed.
These changes matter and have very real implications for today's
workforce.
This fundamental transformation in the workplace has brought about
technological advances that are enabling a diverse population to
balance professional and personal needs in ways that were unheard of in
the 1930s.
While these developments are encouraging, unfortunately there is a
rapidly growing disconnect between Federal standards and the needs of a
vast majority of working Americans in the 21st century.
Committee Republicans have long championed necessary updates to
labor and employment policies that help American workers and business
owners compete in the global economy.
We stand ready to work in a bipartisan manner to modernize the FLSA
to meet the ever-evolving needs of a workforce that increasingly
desires flexibility, choice, and mobility.
Unfortunately, the misguided proposals before us today fail to
address the needs of the modern workforce and will ultimately harm the
very individuals my colleagues on the other side of the aisle claim to
help.
A radical, mandated wage policy and one-size-fits-all regulations
will lead to fewer employment opportunities, less economic freedom,
restricted hours for workers, and more aggressive use of automation,
all while threatening our economic recovery from COVID-19.
Congress can either consider policies which incentivize job
creators to continue employing American workers and create new pathways
for innovation and entrepreneurship, or we can double-down on out-of-
date policies resulting in unemployment.
As states continue to relax COVID-19 restrictions and businesses
continue to reopen safely, now is the time to consider pro-growth
policies that reflect the needs of our modern economy and workforce and
create more economic freedom and independence.
Unfortunately, today's hearing will not help further productive
discussion about how we can foster an environment to create better,
higher-paying jobs without costly, one-size-fits-all government
mandates that ignore industry-specific needs and the resources
available to small business owners.
______
Chairwoman Adams. Thank you very much and let me just go
back to something that I should have done from the beginning. I
do want to note that we do have a quorum, and I do want to note
for the Subcommittee that Mr. Grijalva of Arizona is permitted
to participate in the hearing today with the understanding that
his questions will come only after Members of the Subcommittee
on Workforce Protections on both sides.
This is a remote hearing. Microphones will be kept muted as
a general rule to avoid unnecessary background noise, and
witnesses will be responsible for unmuting themselves when
they're recognized to speak, or when they wish to seek
recognition and I ask the Members also to identify themselves
before they speak.
Members please keep your cameras on while in the
proceedings and you will be considered present in the
proceeding when you're visible on the camera. The only
exception to this is that if you're experiencing difficulty you
need to inform the Committee Staff of the difficulty.
And if any Member experiences technical difficulties during
the hearing you should stay connected on the platform, and let
us know. Should the Chair experience technical difficulty or
need to step away Mr. Takano or another Majority Member is
hereby authorized to assume the gavel in the Chair's absence.
This is an entirely remote hearing. Members should also
expect to adhere to social distancing and safe health
guidelines, including the use of masks and hand sanitizers.
While the roll call is not necessary to establish a quorum and
official proceedings conducted remotely, the Committee has made
it a practice whenever there's an official proceeding with
remote participation for the Clerk to call the roll to make it
clear who's present.
Members should say their names before announcing that they
are present. At this time, I would like for the Clerk to call
the roll.
The Clerk. Chairwoman Adams?
Chairwoman Adams. Present.
The Clerk. Mr. Takano?
Mr. Takano. Mr. Takano is present.
The Clerk. Mr. Norcross?
Mr. Norcross. Present.
The Clerk. Ms. Jayapal?
Ms. Jayapal. Jayapal is present.
The Clerk. Ms. Omar?
[No response]
The Clerk. Ms. Stevens?
[No response]
The Clerk. Mr. Jones?
[No response]
The Clerk. Mr. Yarmuth?
Mr. Yarmuth. Yarmuth is present.
The Clerk. Chairman Scott?
[No response]
The Clerk. Ranking Member Keller?
Mr. Keller. Present.
The Clerk. Ms. Stefanik?
Ms. Stefanik. Stefanik present.
The Clerk. Mrs. Miller-Meeks?
[No response]
The Clerk. Mr. Owens?
Mr. Owens. Owens present.
The Clerk. Mr. Good.
Mr. Good. Good present.
The Clerk. Mr. Cawthorn?
[No response]
The Clerk. Mrs. Steel?
[No response]
The Clerk. Mrs. Foxx?
[No response]
The Clerk. Chairwoman Adams that concludes the roll call.
Chairwoman Adams. Thank you very much and let me also say
any Members who wish to insert written statements into the
record may do so by submitting them to the Clerk electronically
in Microsoft Word by 5 p.m. on the 17th of May.
I want to now introduce the witnesses. First of all, Ms.
Rebecca Dixon is Executive Director of the National Employment
Law Project. As Executive Director Ms. Dixon leads NELP's work
to build and contribute to a strong worker's rights movement
that dismantles structural racism, eliminates economic
inequality, and builds worker power.
Mr. Paul DeCamp is a Member of the first Epstein Becker and
Green. In 2006 and 2007 Mr. DeCamp served as the Administrator
of the U.S. Department of Labor's Wage and Hour Division, and
now frequently represents employers in complex wage and hour
class and mass actions and mass actions in government
investigations.
Ms. Teresa Romero, President of United Farmworkers, the
Nation's largest farm workers union. USW's mission is to help
protect the rights and interests of farm workers by creating a
safe and just food supply.
Ms. Romero is the first Latino and first immigrant woman to
become President of a national union in the United States.
Ms. Haeyoung Yoon is Senior Policy Director at the National
Domestic Workers Alliance, the NDWA works to raise and
strengthen industry standards to ensure that domestic workers
achieve economic security and opportunity, and have
protections, respect and dignity in the workplace.
We appreciate the witnesses for being here today and
participating, look forward to your testimony. But I want to
remind the witnesses that we've read your written statements,
and they will appear in full in the hearing record. Pursuant to
Committee Rule 8(d) and the Committee's practice, each of you
is asked to limit your oral presentation to a five-minute
summary of your written statement.
But before you begin your testimony please remember unmute
your microphone. And during your testimony, staff will be
keeping track of the time and a timer will sound when time is
up. So please be attentive to the time and wrap up when your
time is over and remute your microphone.
If you experience technical difficulties during your
testimony or later in the hearing, you should stay connected on
the platform, make sure you are muted and use your phone to
immediately call the Committee's IT director, whose number was
provided to you in advance.
So we are going to let all the witnesses make their
presentations before we move to Member questions, and when
answering a question, please remember to unmute your mic.
The witnesses are aware of their responsibility to provide
accurate information to the Subcommittee, and therefore we will
proceed with their testimony.
I'd like to first recognize Ms. Dixon. Ms. Dixon you have
five minutes.
STATEMENT OF MS. REBECCA DIXON, JD, MA, EXECUTIVE DIRECTOR,
NATIONAL EMPLOYMENT LAW CENTER
Ms. Dixon. Good afternoon Chair Adams, Ranking Member
Keller and Members of the Committee. I am deeply appreciative
of the opportunity to testify today. I am here today to talk to
you about how slavery and the continued racism, exploitation
and subjugation left in the wake of slavery has directed the
passage of the original Fair Labor Standards Act and lives on
in exclusions that are still in place today.
Congress can act to address this historic wrong and make a
material difference in the lives of millions of working
families immediately. At the time of this passage in 1938 the
agrarian southern political economy depended on the
exploitation and subordination of black labor.
The southern states held the balance of power in Congress,
and were unified in their opposition to including black people
in new laws that guaranteed wages, rights, benefits, or
protections. As a result, Congress used sectors of work
dominated by black workers and other workers of color,
including farm labor, tipped and domestic work as a proxy for
race, in order to exclude black workers in particular from the
FLSA's protections.
This exclusion depressed black workers? wages, effects
still present today in persistent generational wage and wealth
caps. The color line of who worked in which jobs, known as
occupational segregation, continues today with nearly 9 in 10
current occupations being classified as racially segregated,
even after accounting for education.
After years of pressure from civil rights and farmworker
advocates, in 1966 Congress rectified some of the FLSA's racist
exclusions, extending some protections to industries heavily
populated by black workers such as agriculture. But these
amendments continue to exclude most agriculture workers from
vital overtime protections.
In 1974, Congress extended FLSA coverage to many domestic
workers in private household service, but not live-in domestic
workers, casual care workers, or others that were providing
companionship services.
The remainder of my remarks will focus on the FLSA's
subminimum wage for tipped workers. The tipped minimum wage is
a legacy of slavery. It was a practice that was proliferated in
the U.S. after emancipation among restaurants and hospitality
industries which hired ``newly freed black people? and used
tipping instead of paying them.
Years later when the FLSA was adopted, it excluded workers
in most tipped applications from its protections. For tipped
workers, the 1966 FLSA amendment expanded minimum wage
protections, but allowed employers to pay a lower wage to
tipped workers with tips making up the difference.
This is a rare improvement in the FLSA that has lost ground
over the years as a subminimum wage has been frozen at $2.13
since 1991, even as the minimum wage has increased. As a
result, approximately 3.1 million workers in a wide array of
occupations are subjected to lower base wages for the work they
perform leading to higher property rates and precarity for
those who work for tips.
One of the reasons for this is the high rates of labor law
violations such as not topping workers up. Nationwide tipped
workers rates of labor law violations are extremely high.
Nationwide tipped workers have a high poverty rate that is
nearly twice that of non-tipped workers, eliminating the
subminimum wage advances equity, promotes economic security as
evidenced by analysis from one fair wage states where tipped
workers receive the full minimum wage on top of tips.
In those states the property rate for tipped workers was 42
percent lower than national averages, and the gender wage gap
shrank by one-third. As a final matter, let's talk about
businesses and the impact of the one fair wage.
Evidence from the seven one fair wage states points to
businesses not just surviving but thriving. An analysis
covering 2011 to 2019 finds that the restaurant industry was
stronger and grew faster in one fair wage states, than in
states with a lower tipped wage.
Congress has the obligation and opportunity to right the
wrongs that we are discussing today. Joining together with
workers who are organizing and demanding better wages in the
laws that have exclusion and inequity at their core. Congress
should pass the Raise the Wage Act of 2021, the Domestic
Worker's Bill of Rights, and the Fairness for Farmworkers Act.
Each of these will put us on the path toward more equitable
and just treatment of millions of workers who have been
excluded from these protections of the FLSA for far too long.
Thank you.
[The prepared statement of Ms. Dixon follows:]
Prepared Statement of Rebecca Dixon
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Vassar. Apologies. I believe Chair Adams is currently
off the platform. Hold on one second please. We're working to
get this together.
Mr. Takano. Mr. DeCamp we'll now hear from you for five
minutes.
STATEMENT OF MR. PAUL DeCAMP, MEMBER, EPSTEIN BECKER & GREEN,
PC
Mr. DeCamp. Thank you. Good afternoon Chair Adams, Ranking
Member Keller and distinguished Members of the Subcommittee.
Thank you for inviting me to testify at this hearing to address
the treatment of farm workers, domestic workers and tipped
workers under the Fair Labor Standards Act.
My testimony today will focus on the Subcommittee's
consideration of three bills: H.R. 603, H.R. 1080, and H.R.
3760. I'm here today to express my opposition to these bills.
Given the Subcommittee's stated interest in examining the
origins of those portions of the FLSA relating to agriculture,
domestic service and tipped employment, as set forth in my
written testimony, a detailed discussion of the pertinent
statutory language, followed by an analysis of these bills.
I will focus my remarks today on the policy and legal
reasons why I encouraged the Subcommittee to reject each bill.
First, the proposal in H.R. 603 to more than double the Federal
minimum wage from $7.25 to $15.00 an hour will cost people
their jobs.
The nonpartisan Congressional Budget Office has repeatedly
determined this kind of sharp increase would hurt more people
than it would lift out of poverty. Earlier this year the CBO
considered H.R. 603, it concluded that while the number of
individuals in poverty would decline by roughly 900,000,
employment would drop by 1.4 million if the Federal minimum
wage increased to $15.00 as people either lose their jobs or
drop out of the workforce entirely.
CBO has noted that the hardships caused by these steep
minimum wage increases fall most heavily on young, less
educated workers with the resulting loss of earnings
concentrated among families within the lowest income quintile.
CBO has also pointed out that as the cost of employing low-
wage workers rises, employers shift their hiring preferences,
opting for employees with more skill or experience, or
investing in machines to replace workers.
While much of the public debate about $15.00 an hour,
posits a sole breadwinner struggling to lift the family out of
poverty. The reality is that most individuals who earn minimum
wage are young and are not supporting families. According to
the Bureau of Labor Statistics, only about 1.5 percent of all
hourly workers in the United States earn at or below minimum
wage, and fully 48 percent of those individuals are under age
25.
7 out of 10 of them are in service industries, mostly in
food service, often earning significant tip income. In
addition, it is important to keep in mind that although a
minimum wage of $15.00 might not have much effect on employment
in certain high wage cities.
In many parts of the country, particularly in rural areas
and in the south, the economic conditions simply cannot sustain
these kinds of wage levels, and it is important to remember
that minimum wage workers cluster in industries such as
restaurants, hotels and movie theaters, which have been
especially hard hit by COVID-19.
The hospitality industry has lost nearly 4 million jobs,
and more than 100,000 restaurants have closed. Now is not the
time to make things even more difficult for these businesses to
keep their doors open. If they fail, workers lose jobs.
With regard to the proposal to eliminate the tip credit,
the key thing to keep in mind is that 97 percent of tipped
workers prefer the current structure of tipping over no tip
options. They earn on average $14.32 an hour in total
compensation.
Indeed, several restaurants that shifted to a no tip
approach ended up switching back to tipping after their wait
staff quit. Tipped workers are simply better off with the tip
credit than without it.
Turning to H.R. 1080 it is important to understand the
economic consequences of eliminating nearly all of the FLSA's
agricultural exemptions. The nature of agricultural work,
especially harvesting, requires long hours during a relatively
short season, thus rendering the jobs generally unsuited for
overtime.
Some farmers may try to cut worker's hours leading to lower
earnings per worker, but finding extra farm workers is no easy
task, and most farmers would end up seeing a dramatic increase
in labor costs leading to higher food prices for consumers.
At the same time American farmers would be at a distinct
competitive disadvantage with respect to non-U.S. agricultural
producers. In addition, smaller, independent farming operations
and family farms would likely suffer the most, as they are less
able to absorb higher costs than larger, more robustly financed
corporate farms.
Finally, my opposition to H.R. 3760 today centers mainly on
its likely unconstitutionality. The bill intrudes into people's
homes and imposes on individuals sweeping legal obligations
untethered to legitimate Federal interests.
It is far from clear that Congress has authority under the
commerce clause to regulate purely local employment within a
private residence, particularly given the current configuration
of the Supreme Court.
This concludes my prepared remarks. I welcome any questions
the Members of the Subcommittee may have. Thank you.
[The prepared statement of Mr. DeCamp follows:]
Prepared Statement of Paul DeCamp
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Chairwoman Adams. Thank you, sir. Next, we'll hear from Ms.
Romero and again I want to apologize for my internet issue that
I had a moment ago. Ms. Romero?
STATEMENT OF MS. TERESA ROMERO, PRESIDENT, UNITED FARM WORKERS
Ms. Romero. Thank you. Chair Adams, Ranking Member Keller,
and distinguished Members of this Subcommittee. Thank you for
the opportunity to testify today. My name is Teresa Romero, and
I am the President of the United Farm Workers. Today I'm
testifying on behalf of the United Farm Workers and the UFW
Foundation.
Farm workers workday in and day out to plant and harvest
the crops and care for the livestock we all rely on for our
food. The COVID pandemic has underscored the critically
important work of farm workers. The pandemic also has
highlighted the vulnerability of farm workers due to the
discriminatory exclusion from key protections other workers
enjoy, such as overtime pay.
The history of agriculture in the United States is a
history of racism. During the ``New Deal'' period, President
Roosevelt and his allies compromised with southern Congressmen
to exclude work traditionally associated with black workers. By
excluding farm workers and domestic workers from FLSA, Congress
sought to preserve an economic system that exploited black
people.
Members of Congress at the time were explicit, they did not
believe black people believed the same wage protections as
white people. As stated by Representative Wilcox and I quote,
``There is another matter of great importance in the south, and
that is the problem of our Negro labor. When we turned over to
the Federal Bureau of Board the power to fix wages, it will
prescribe the same wage for the Negro that it prescribes for
the white man.
Now, such a plan might work in some sections of the United
States, but those of us who know the true situation know that
it just will not work in the south. You cannot put the Negro
and the white man on the same basis and get away with it.''
Today our Nation is painfully aware of our entrenched
racism, and the impact it exerts on people of color. Congress
must take one step toward addressing systemic racism by ending
the discrimination that endures in the FLSA. Farm workers would
benefit greatly from overtime pay.
One of the purposes in enacting FLSA was to eliminate labor
conditions detrimental to the maintenance of the minimum
standard of living necessary for health, efficiency and general
well-being of workers. Exclusion of farm workers from the
overtime protection flies in the face of that purpose.
Farm workers work for low pay and in dangerous conditions,
which is exacerbated by long hours. Beyond the increased
dangers from the pandemic, agriculture work is among the most
dangerous work in the country. Farm workers are
disproportionately likely to be harassed, poisoned, injured, or
killed on the job.
Overtime is needed to help minimize the damaging effect of
agricultural work on the body. Trust me, more than 40 hours a
week in agriculture is extremely challenging and can lead to
long lasting injuries.
Overtime pay would also provide additional income for farm
workers, many of whom live in poverty, who live from poverty,
and provide security in other areas. For example, farm workers
with great economic security will feel more confident leaving
abusive employers.
The United Farm Workers worked with California's
legislature in 2016 to end the race base exclusion of farm
workers from overtime pay. The economics of overtime pay for
California's agriculture have had a positive impact. Farm
workers are able to get more pay. In California agriculture
continues to thrive.
Recently the Washington legislature passed a law that
phases in an overtime pay for agricultural workers after the
state's Supreme Court found that exception of dairy workers
from overtime pay was unconstitutional. The Governor of
Washington is expected to sign the bill into law.
In conclusion, now is the time to right the wrongs that can
no longer be tolerated. We must end the racist exclusion of
farm workers from FLSA's overtime protection. It was wrong
then. It is wrong now when most farm workers are Latino. I
thank Representative Grijalva for his leadership fighting
racist exclusion of farm workers from overtime.
We call on Congress to enact Representative Grijalva's
Fairness for Farmworkers Act. As our Member, Jorge Maldonado
shared on learning about overtime pay in Washington, winning
overtime pay is a victory of equality. It is a historic moment,
and I am happy to have been part of it. We cannot progress if
we're building on the foundation of injustice. Thank you.
[The prepared statement of Ms. Romero follows:]
Prepared Statement of Theresa Romero
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Chairwoman Adams. Thank you very much. Finally, we'll hear
from Ms. Yoon, you are recognized for five minutes.
STATEMENT OF MS. HAEYOUNG YOON, JD, SENIOR POLICY DIRECTOR,
NATIONAL DOMESTIC WORKERS ALLIANCE
Ms. Yoon. Thank you, Madam Chair. Thank you for the
opportunity to testify. Domestic workers in the early part of
the 20th Century compared to today's workforce have both
changed dramatically and remain remarkably similar. In the
earlier part of the 20th Century although women increasingly
joined the workforce, their job opportunities were limited, and
black women and immigrant women were virtually shut out of
better paying jobs that some white women were able to get.
In 1930s and 40s black women were overwhelmingly
represented in domestic service. Today domestic workers are
from diverse racial and ethnic backgrounds. To give you a sense
of the diversity, when we surveyed domestic workers in 2012, we
interviewed workers from 71 countries.
What has remained the same in the last 80 years is that
women are over-represented in the sector. Today over 90 percent
of domestic workers are women, well over half are women of
color, and a third are immigrants. Unlike farm workers,
domestic workers were not expressly excluded when the law
passed in 1938.
On its face the exclusion appears race and gender neutral.
The coverage was based on whether a worker engaged in commerce,
or in the production of goods for commerce. But research shows
that while more expansive interpretation of the commerce clause
was legally permissible, political consideration dictated to
conclude that domestic work did not implicate commerce.
Committee debates show that the exclusion of domestic
workers, along with farm workers were motivated by racism,
allowing employers in the south to dictate the terms and
conditions of black labor, and to maintain a racial and social
hierarchy. Some legislators opposed the law on the ground that
it threatened to equalize wages between black and white
workers.
Others compared FLSA to anti-lynching legislation. We also
see the workings of sexism. Seeing domestic work as women's
unpaid household labor, Roosevelt is quoted to saying that the
Fair Labor Standards Act is not intended to apply to ``domestic
help.''
It took a large movement for Congress to extend FLSA
coverage to domestic workers in 1974, finding that domestic
service affects commerce. While it extended protection to a
significant number of domestic workers, it also left many out
of its protection.
Congress narrowly exempted companions and casual
babysitters from the minimum wage and overtime protection, but
entirely excluded live-in workers from overtime protection. The
Labor Department took the companionship services exemption and
defined it overly broad to carve out a whole class of home care
workers whose vocation is to provide home based services to
older Americans and people with disabilities, and exempted
third-party employers, like a home care agency, from paying
their workers minimum wage and overtime.
In 2013 the Labor Department issued new regulations to
bring the scope of the exemption in line with congressional
intent, and to reflect the dramatic changes in the home care
industry. Now millions of home care workers are covered under
minimum wage and overtime protection, and third-party employers
are required to pay their workers minimum wage and overtime.
But live-in workers who are hired by private households
remain excluded from overtime protection. This legacy of racial
and gender exclusion continues to shape the working lives of
domestic workers. Their work is devalued, they're underpaid and
largely unprotected in the workplace.
In 2018 domestic workers earned just about $16,000.00 a
year, significantly lower than other workers whose average
annual income was about $39,000.00. Wage staff and other
workplace violations are pervasive across domestic occupations.
They often work long hours and are exposed to potentially
harmful cleaning products.
Given that the nature of domestic work is intimate, too
many workers are subject to sexual assault and harassment,
physical and verbal abuse. Domestic workers ongoing exclusion
from other Federal workplace laws such as Title VII, health and
safety laws leave them without protection.
This is the reason why this Congress must pass the Domestic
Workers Bill of Rights to protect domestic workers across the
country. Thank you.
[The prepared statement of Ms. Yoon follows:]
Prepared Statement of Haeyoung Yoon
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Chairwoman Adams. Thank you very much to all of our guests
for their testimony. Under Committee Rule 9(a) we're going to
now question witnesses under the five-minute rule. I'm going to
be recognizing Subcommittee Members in senior order.
Again to ensure that the five-minute rule is adhered to,
staff will be keeping track of the time. And the timer will
show a blinking light when your time has expired. So please be
attentive to the time, wrap up when your time is over, and
remute your microphone.
As Chair I'm going to recognize myself for five-minutes.
Ms. Dixon there are entire business models that assume, or
center around excluding farm workers, domestic workers, or
tipped workers from protections afforded to other workers, so
does that mean it's too late to correct these exclusions and
why is it important for business leaders to examine the impacts
of these business models on workers of color?
Ms. Dixon. It's never too late to examine a change in these
business models. When something is rooted in white supremacy,
and exclusion of workers of color, even those unaware of the
roots of these exclusions should not continue to profit and
benefit from them.
But because we know that far too many businesses are built
on the benefits they reap from these exclusions we know that we
cannot erase them immediately without doing undue damage to
business. This is why for example, the Raise the Wage Act calls
for a gradual elimination of the tipped minimum wage, rather
than an immediate eradication of it.
And as we know, the advocates for tipped workers are very
open to further discussion about how to ensure that we reach
one fair wage in a manner that's economically responsible. But
what we are not open to is continuing to enshrine a subminimum
wage for tipped workers, and continuing to perpetuate an
exclusion that is rooted in the blatant desire to avoid paying
wages to black workers who were formerly enslaved, and that
operates in a manner and means that women of color who make up
a disproportionate share of tipped workers continue to earn
lower wages.
Chairwoman Adams. Thank you. Ms. Yoon, I came from a long
line of domestic workers, my mom and my grandmother both were
domestic workers. The workday was hard. It was undervalued,
underpaid, and unfortunately that still seems to be the case.
Domestic workers have been called the invisible workers on
the frontline of the pandemic. Is this invisibility connected
to the history of the FLSA that we are discussing today?
Ms. Yoon. Thank you for that question. Very much so. The
pandemic has revealed how many workers we've taken for granted.
Their labor devalued, and their contribution to the economy
made invisible. It took a pandemic to recognize that domestic
workers who have been providing care and essential services to
our children, aging parents, have been helping us to function
as a society, and making it possible for all of us to work.
Au pair job is a job enabling job. While families sheltered
at home last year, many domestic workers continued to go to
work facing an impossible choice around how they're going to
feed themselves, and keep themselves and their families, and
those they care for safe without necessary protective equipment
and easy access to testing.
The fact that domestic workers faced these impossible
choices is because they have been earning poverty wages, living
paycheck to paycheck, no access to paid time off. This is both
the legacy of exclusion from FLSA which has had a domino effect
of being excluded from other laws, and from legislation, even
introduced in this Congress like the Health Families Act.
Chairwoman Adams. OK thank you. Ms. Romero from my work on
the Ag Committee I worked with struggling black farmers who
have also faced discrimination in Federal policy, and this
Committee it's clear to me that we must also work to provide
our farm workers who are overwhelmingly Latino, with basic
protections.
How do we balance these goals? And how would you respond to
the concern that farmers are struggling right now, and that
making farm workers eligible for overtime pay would be a
difficult cost for farmers to bear.
Ms. Romero. Thank you, ma'am, for the question. Do you know
when I think about those who struggle in agriculture, I think
of farm workers and what overtime pay would mean to them. You
know a doctor's visit, enough food for their family without
having to go to food banks. And while under business law we
talk about struggling small family farms. The reality is that
most farm workers are hired by big companies who like any other
private business should provide their workers with the basic
FLSA protections.
Chairwoman Adams. Thank you very much. I'm going to now
yield my other few minutes. I'm going to give those back. But I
want to recognize the Ranking Member for the purpose of
questioning the witnesses now. Mr. Ranking Member?
Mr. Keller. Thank you, Madam Chair. Mr. DeCamp the
Workforce Protection Subcommittee is here to help ensure that
Congress makes policy decisions based on sound evidence. Our
evidence does not support the claim that the one size fits all
$15.00 national minimum wage would benefit economically or
geographically diverse parts of our country.
Based on your experience working with employers, what
complications should Congress anticipate if legislation takes
effect that would increase the national minimum wage to $15.00
an hour. And apply that to the same thing for tipped employees
that work throughout the United States?
Mr. DeCamp: I think we'd see significant job losses, and
that would be especially true for younger and less skilled
workers. This would be a significant barrier to entry for
people trying to get their foot in the door to become
employees, to get jobs in the first place. And I think that
this would also have a severe impact on tipped industries
including restaurants and hospitality that rely on the tip
credit as part of the wage structure given how customers
typically pay for services.
This would cause devastating effects especially in rural
and southern parts of the country where the wage levels are not
as high as in certain cities.
Mr. Keller. And I guess I would just followup in that. Your
experience in what you've worked, people you've worked with,
whether it's the employers or the employees, a lot of the tip
wages are people that might be in college, people that might be
you know graduating from high school, first jobs, is that a
fair statement to say?
Mr. DeCamp. Yes.
Mr. Keller. Where people get experience on work and are
able to enter the workforce?
Mr. DeCamp. Exactly. I mean most of the folks that are
making minimum wage are not people who are adult supporting
families who have been in those positions for years. More
commonly you have minimum wage workers are either entry level
workers achieving their first job, or something early in their
employment, or they're individuals who are getting a tipped
wage where their total earnings were substantially in excess of
the minimum wage.
Mr. Keller. Thank you. I appreciate you for clarifying
that. Mr. DeCamp businesses across the country, especially
those in the restaurant industry, are reporting that they are
struggling to find workers to fill open jobs as the economy
fully reopens from COVID-19 pandemic.
If Congress were to pass the Raise the Wage Act which
eliminates the tip credit, what impact do you believe this
radical policy change would have on the ability of restaurants
and hotels and related establishments to recruit and retain
individuals who enjoy the documented benefits of receiving tips
for their services?
Mr. DeCamp. The current estimates have been about close to
700,000 tipped employees would lose their jobs. In addition, I
think countless restaurants would close. This would be
devastating for the workers who need these wages the most.
Mr. Keller. Also Mr. DeCamp, farms in the United States
face seasonal and weather-based constraints in their annual
operations, as well as the challenges that arise when caring
for livestock and other animals, all factors that don't follow
a regular 9 to 5 office schedule.
In light of these realities can you explain on the impacts
that Rep. Grijalva's proposed changes to the FLSA's farm worker
overtime exemptions would have on farming and operations and
agricultural workers?
Mr. DeCamp. Yes sir. Farmers would face a choice. They'd
either have to reduce hours of individual workers and spread
the work around which would reduce the pay of individual
workers, or they would have to pay higher labor costs. And if
they have to pay higher labor costs then they have to charge
more for the agricultural products that they sell, which then
has ripple effects throughout the economy.
It increases the cost of food in restaurants and groceries
stores and also puts those farms at a competitive disadvantage
with non-U.S. agricultural producers that don't face the same
labor costs.
Mr. Keller. Seeing that would result in people earning
fewer or less wages, and then also would impact maybe people on
fixed incomes, retirees, as far as the cost of receipt of being
able to purchase food and other items?
Mr. DeCamp. Sure.
Mr. Keller. Mr. DeCamp as you noted in your testimony the
FLSA is over 80 years old. There is bipartisan agreement that
many of the FLSA's provisions and regulations are outdated and
overly complex. Do you agree with that view?
Mr. DeCamp. Yes. I mean this is a topic that could take a
full hearing on, but yes.
Mr. Keller. OK. I was just going to ask if you could
identify elements of the FLSA that should be updated to meet
the needs of our 21st Century workforce.
Mr. DeCamp. Clearer standards for who is an employee,
possibly having a non-binary employee independent contractor
approach. Clearer objective standards for who is exempt or not
exempt, clearer standards for what contemplates or what
constitutes compensable work, all of those would help a lot.
Mr. Keller. Thank you. I appreciate it.
Chairwoman Adams. Thank you very much gentleman yields
back. I want to recognize Mr. Takano of California. Five
minutes, sir.
Mr. Takano. Thank you, Madam Chair. Mr. DeCamp have you
worked farm work? Have you worked on a farm?
Mr. DeCamp. I'm sorry. I have not worked on a farm.
Mr. Takano. Thanks for that. I just turned over soil in my
yard, just a few square footages, it was hard work. How many
college students do you know working farm worker jobs in this
country like real farm worker jobs? I mean do you see a large
share of college students working farm worker jobs, young
people?
Mr. DeCamp. No.
Mr. Takano. Well it's mostly mature adult people working
back breaking work on farms. What about homecare workers. A lot
of teenagers and college students working those jobs?
Mr. DeCamp. No.
Mr. Takano. OK. Can I ask Ms. Romero, Ms. Romero can you
confirm that the typical farm worker is not a teenager, or a
young person that needs an entry into the workforce?
Ms. Romero. That is correct sir.
Mr. Takano. And typically, I mean what are the ages of
people who work on farms doing the back breaking work of
hoeing, tilling the soil, you know, all of the stuff in the hot
sun, tell me about that.
Ms. Romero. We have workers, probably you know I can tell
you that we have workers that are in their 20's. We have
workers that are, I can tell you that one of our Members, has
been working in agriculture for 40 years, he's over 70 years
old. So we have workers that are probably older than you know
what you're talking about teenagers, or early 20's.
Mr. Takano. So I mean the arguments being put forward by
Mr. DeCamp is that a minimum wage across the country, one fair
wage is going to deny a lot of young people entry into jobs.
What do you have to say about that? I mean it's one of the
narratives they're using;
Ms. Romero. You know there is not a lot of young people
that are looking to work in agriculture. It's very demanding,
very physically demanding. But there is also actually a study
that addresses the question of the cost of our food. The study
found that increasing wages to farm workers by about 40 percent
would only increase consumer's household grocery by $25.00 an
entire year.
And that study was done by the agriculture economist Phil
Martin, and at the Economic Policy Institute. I can tell you
the average age of farm workers is 38. About 38-40.
Mr. Takano. 38 years old, and they're not protected by the
Fair Labor Standards Act. They're not protected by the minimum
wage, even the Federal minimum wage. I can't see being 38 years
old, let alone 40 years old, or 50 years old, working under the
hot sun and then finding out that I have to work longer than
the 8 hours a day, or longer than 40 hours a week and am not
protected by overtime.
Are there any states that do provide farm workers with
overtime protections?
Ms. Romero. As I said here in California the UFW worked
with the California legislature in 2016, and farm workers, the
overtime pay is being phased in. This year farm workers earned
overtime pay after 8 and a half hours a day, and next year it's
going to be after 8 hours a day in California, and I'm sorry
Washington legislature just passed a law that says that it is
unconstitutional not to pay workers overtime pay, and it is
expected that the Governor will sign it.
Mr. Takano. What do you feel about the fact that so many
workers across this country who work in demanding physical
labor aren't protected by the farm workers are not protected by
overtime pay in other states?
Ms. Romero. You know as I mentioned sir these protections
or exclusion of farm workers were based in racism. Like I said
our core commander down in Washington says if we continue to
build on these times or the decisions that were made at one
time on the foundation of injustice, we're not just going to be
able to get these workers to get the pay that they deserve.
They deserve overtime pay. They feed our country.
Mr. Takano. Well I'm just seething with anger at Mr.
DeCamp's testimony which seems to reject any racial motivations
for excluding farm workers from the FLSA in 1938, and instead
suggests that the nature of farm work led to the farm worker
exclusions. I just don't know what to say. Madam Chair I yield
back.
Chairwoman Adams. Thank you very much. I want to recognize
the gentlelady from New York Ms. Stefanik.
Ms. Stefanik. Thank you, Madam Chair. I wanted to followup
on Mr. Takano's questions. Clearly, he represents a district
that's very different than upstate New York. I represent tens
of thousands of small family farms, and in fact these are
multi-generational farms, so college aged students do go home
to work at the farm, and also run those farms.
These farms are fighting to hand on. It is a tragedy that
family farms have closed over the past decades. We should be
making it stronger for domestic agricultural supply, and those
multi-generational small family farms to exist, not harder.
So Mr. DeCamp my question is for you. As I mentioned I do
represent tens of thousands of small family farms in upstate
New York. And I am very concerned about the implications of
mandating the -40-hour work week on farmers and farm workers.
As you know, and any farm family knows, and any farm worker
knows, the inherent nature of farming calls for long hours,
often in very short windows in order to cooperate with the
unpredictable weather and the narrow harvest times.
New York State has implemented an overtime threshold for
agriculture employers which has forced many small family farms
in my district and throughout the State to cut hours for
workers and eliminate labor intensive crops. Several fruits and
specialty crop producers, for example, have cut down fruit
trees in order to spare the expense of growing fruit that they
cannot hire someone to pick.
So my question Mr. DeCamp is what is the overall economic
impact to U.S. agriculture if farmers had to pay overtime after
40 hours? And what effect would this have on the ability of
American farms to maintain a strong domestic food supply?
Mr. DeCamp. Well with the caveat that I'm not an economist,
and don't claim to be. From a labor incentive standpoint I
think it's fair to say that employers in this industry would
face great pressure to do something about the overtime cost,
either by spreading the work around, which is the policy behind
the FLSA's 40 hour work week, or by having to pay the higher
costs and find a way to make do with that, either by raising
prices, or by having lower profits.
I think the reality is it would cause where possible, farms
to employ people for less hours. I can certainly envision
situations where farms will employ people for 3 days a week,
and then those folks would go to a different farm for the other
2 days a week. The farm workers need the hours. They want the
hours. And so I don't think the farm workers would be working
less hours, it would be a question of where they'd be doing it.
Ms. Stefanik. My next question is to you. You mentioned
this and Mr. Keller did as well, but the fact that we are in a
global marketplace when it comes to agricultural products. My
district borders Canada, and in many ways we want to make sure
that American farms are not at a competitive disadvantage given
that proximity to the northern border, we're in direct
competition with Canadian farmers for market access, especially
for fruit and vegetable products.
Canada currently has a lower minimum wage than New York
State, and exempts agriculture from overtime requirements, and
as a result our upstate New York markets are often flooded with
Canadian product, putting our New York and American farmers at
a severe competitive disadvantage.
So my question is would this 40 hour work week and the
increased cost of American product open our markets to further
influx of cheaper foreign products, and what kind of affect
would that have for farmers who already compete with those
foreign products in our U.S. domestic market.
Mr. DeCamp. Again, I think that when you raise your cost
structure and you're competing with businesses that have a
lower cost structure to produce the same good, it puts you at a
disadvantage in the market. I think this would create a lot
more difficulty for American farmers to sell their products,
especially where they're in a market where there is an easy
supply of lower cost produce, and they've the northern border,
the southern border, places where there are readily perishable
goods coming across the border from a much lower cost
structure, it creates huge market pressure for the farmers and
could well drive them out of business.
Ms. Stefanik. And then my last question Mr. DeCamp is
there's a lot of discussion between bigger farms and smaller
farms, and this mandate would impact all farms, but it would be
specifically hurtful and impact small, rural family farms. Can
you talk about that? How it would specifically hurt those rural
family farms?
Mr. DeCamp. Well smaller farms that don't have the same
kind of accumulated savings. They don't have the same kind of
lifelines. They don't have the same kind of integrated
operations that can perhaps function as a loss leader for other
businesses within a chain are unable to weather the storm.
They can't deal with short-term or longer-term drops in
profitability. They just don't have the resources to do it.
Ms. Stefanik. Thank you very much. After a year of
unprecedented certainty for our family farms, we need to be
making it easier and more supportive for them to grow domestic
products, not harder with these one size fits all mandates. I
yield back.
Chairwoman Adams. Thank you. The gentleman from New Jersey,
Mr. Norcross, you're recognized for five minutes.
Mr. Norcross. Thank you, Madam Chairman. It's great to have
a Committee that's absolutely focused on survival. We're
hearing testimony, and we're counting back, it affects business
and certainly a part of the equation. But the fact that we are
a dozen years, 12 years since the last minimum wage increase,
more time than in the history of minimum wage, and that somehow
this is a radical move, are you kidding me?
$7.50 an hour in the wealthiest nation in the world that
incrementally and predictably would raise it. Unbelievable
we're still having this conversation. And then we look at the
tipped worker and I've got to ask. Ms. Dixon when the change
took place for tipped workers saying you could combine that
$2.13 and make up for it in tipped wages.
How are the tipped wages reported? How does management
estimate or prove that they're actually getting those tipped
wages?
Ms. Dixon. So part of the reason why there's so much non-
compliance in restaurants is that employers don't actually
track the tips, and as required by law. So if you don't keep
track of the tips, you don't know how to top up. So that's one
of the big issues that we see, and you can see how even--well-
meaning employers can get caught up in that, and certainly the
ones that want to do it intentionally can do it.
Mr. Norcross. Good. So there's a financial incentive not to
collect that information.
Ms. Dixon. Correct.
Mr. Norcross. OK. Now when we go to Europe so many people
tell us, ``Oh you don't tip workers over there because they're
already making that.'' So the model for the majority of the
world is not using tips, is that correct?
Ms. Dixon. That's correct. In the U.S. we came to tipping
in the post-emancipation era as a you know, a way to treat
formerly enslaved people where they just get paid whatever they
get paid, whatever you want to give them as opposed to paying
them a wage.
Mr. Norcross. So when we look at trying to level the
playing field which should have been done long before this, and
raising the minimum wage is incredibly important. But when
those tipped workers go to if this law is passed to a minimum
wage, that means that their competition is paying the same rate
correct? It levels the playing field?
Ms. Dixon. It absolutely does, and it gets rid of this
unfair advantage that some minimum tipped wage employers have
had versus other employers.
Mr. Norcross. Well the idea of competition is that
everybody will be paying this. Is there any chance for
particularly in the restaurant industry, that foreign
competition is going to bring in food and deliver it to people?
Ms. Dixon. You said foreign competition?
Mr. Norcross. Yes, yes, foreign competition. In other words
are they coming over from Canada to deliver food because they
can do it cheaper?
Ms. Dixon. Most of what we've seen is that restaurants are
local and that's my point right.
Mr. Norcross. There is no foreign competition, for that
piece of it now. McDonalds on this side of the river will pay
the same as that side, and they don't seek tips with the
restaurant. This levels the playing field. Takes that incident
that the employer can do for not counting tips out of the
equation. Then you know if they want to tip on top of it, they
do.
It's time to wake up. I have nothing against the folks on
the other side of the aisle, this is a moral obligation to make
sure people can live. I know a lot of times taking care of the
villagers, we got to remember that people are literally keeping
this country running. I yield back.
Chairwoman Adams. Thank you. I want to recognize Mrs.
Miller-Meeks of Iowa now five minutes ma'am. Mrs. Miller-Meeks?
OK. Mr. Owens of Utah? The gentleman from Utah? Mr. Good from
Virginia?
Mr. Good. Yes ma'am. Thank you, Madam Chairman, third
time's a charm here, glad to be with you all.
Chairwoman Adams. OK.
Mr. Good. Thank you, Madam Chairman, and thank you to our
guests today. You know it's sad to see though democrats once
again framing every issue in terms of race, seeking to further
divide our Nation, perpetuate a false narrative, and further
portray a victimhood mentality.
Democrats also never miss an opportunity to put illegal
aliens and foreign workers ahead of Americans. If they truly
want to protect foreign guest workers, they would support the
work of border patrol and customs, and border protection. I
have been to the border and I've heard the reports of physical
abuse and danger for those illegally crossing.
Those who can't afford to pay smugglers are extorted into
carrying drugs and other elicit material. Others are abused as
indentured servants to the cartels. If they make it across many
are forced to live the rest of their lives with existential
threats to themselves and their families.
While democrats romanticize illegal immigration, demonize
law enforcement and turn a blind eye to the horrific abuse that
people face at the hands of the cartels, my questions are how
long will it be until the President, the Vice President visit
the border?
When will democrats stop attacking border patrol, ICE and
local law enforcement? If the democrats are truly worried about
exploitation of guest workers, will they support mandatory E-
Verify?
Turning specifically to agriculture concerns in my
questions for our witnesses, somebody asked earlier of another
Member of our panel. I have worked on farms. I worked on dairy
farms, horse farms, agriculture farms, picking crops, baling
hay and much more. It is very hard work, but there's honor in
that work.
I now have the honor of representing Virginia's 5th
District that has over 300,000 farm workers. Recent years have
been difficult for farmers thanks in part to China's trade war,
and the mishandling of COVID-19.
But only democrats could look at a struggling industry and
think now is the time for more costly and burdensome
regulations as they believe more government is the answer to
everything. So Mr. DeCamp can you please comment further on the
economic impact for farmers if democrats force H.R. 1080 upon
them, the Fairness for Farmworkers Act?
Mr. DeCamp. I don't know that I have much to add beyond
what I said before which is that it creates pressure on farmers
to either reduce hours for workers in order to avoid having to
pay an overtime premium, or it forces them to absorb a higher
cost structure which threatens their viability and threatens to
increase prices substantially in the market, and puts them at a
competitive disadvantage with foreign producers.
It's tough and for businesses that are barely making it,
especially smaller farms, it can be the final nail in the
coffin.
Mr. Good. Yes don't you think there's a disconnect in the
democrat policy of requiring overtime pay in agriculture to the
realities of what farm work is like?
Mr. DeCamp. I think that farm work, much like many other
jobs in the Fair Labor Standards Act for which overtime is not
provided, is such that it is not susceptible to the policies of
the FLSA. It doesn't make sense in other words to apply the
overtime premium to this kind of work, much like many other
kinds of work that are exempt under the FLSA.
Mr. Good. Can you point to any examples of similar policies
that have enacted in other states that you know outside of
Virginia that have hurt the ag economy?
Mr. DeCamp. I'm not familiar with much State law regulation
of agriculture.
Mr. Good. If producers are forced to grow less--labor-
intensive crops because of this change that's been proposed,
how do you think the food supply might be negatively impacted?
Mr. DeCamp. The question would be would those same food
products come from somewhere? And if they came from somewhere
else would that necessarily involve a higher cost to consumers
and then I'd also be wondering about if the farmers are using
less--labor-intensive crops, what are the farm workers doing?
Are they going to have jobs? Does that affect employment
for those workers in the industry if the farmers are saying
we're just not going to plant those crops?
Mr. Good. And undoubtedly that would hurt the wallets of
consumers as prices might go up with more scarcity of products
because they're not grown because labor has shifted to less--
labor-intensive products that are grown.
You know again to the panelists, to our guests, and to my
fellow Members of this Committee, it's a shame that we think
that the majority here at least thinks that governments' answer
to everything more government intrusion, more government
regulation, instead of letting the free economy work and we
want to layer more levels of regulation intrusion upon these
farms.
Chairwoman Adams. The gentleman is out of time.
Mr. Good. I think I've got 10 seconds. I yield back thank
you ma'am.
Chairwoman Adams. All right thank you, thank the gentleman.
The gentlelady from Washington Ms. Jayapal, you have five
minutes ma'am.
Ms. Jayapal. Thank you very much Madam Chair. I really
appreciate this hearing and I'm always stunned at what feels
like a lot of hypocrisy in the comments that get made in this
Committee. The hypocrisy of exploiting labor, but not wanting
to honor that labor with immigration reform, or the hypocrisy
of saying we want mandatory E-Verify without immigration reform
when even the farmers have told us that they don't want that
because they need the workers.
So I hope we can get to a place where we're not denying
that overtime premiums should apply to all workers. Why should
some workers be asked to work without that overtime? I just
don't understand that at all. We're here today to take
responsibility for the legacy of the Fair Labor Standards Act,
which excluded domestic workers and farm workers from
protection.
I want to focus on domestic workers. Today over 2 and 1/2
million nannies, housecleaners, and care workers do the work of
caring and cleaning in homes across this country. Over half of
these domestic workers are black, Hispanic, Asian-American, or
Pacific-Islander.
And in 1930 an estimated 79 percent of domestic workers in
the south were black. So domestic workers have traditionally
been people of color. Ms. Dixon how would you explain this
fact, and how does it relate to the ongoing exclusion of live-
in domestic workers from benefits such as overtime protections
under the Fair Labor Standards Act?
Ms. Dixon. This rule was rooted in racism as we talked
about earlier in my testimony. And the fact that it moved from
one set of women of color, to another set of women of color is
not a surprise. The moment is now to get rid of this. There is
no reason that we allow this exploitation to continue.
Ms. Jayapal. Thank you. And Madam Chair thank you for
mentioning my Domestic Workers Bill of Rights, that bill would
fix this for domestic workers by extending common workplace
rights and protections to domestic workers including overtime
pay, paid sick days, privacy, and other civil rights
protections. The bill also extends new workplace rights and
benefits that address the unique challenges of domestic work,
requiring written agreements, fair scheduling provisions, a
national domestic worker hotline, and a standards board to
investigate standards in the industry.
And it would create and fund an interagency task force on
protecting domestic workers workplace rights to ensure robust
enforcement of the law. These protections are crucial for
domestic workers like a woman I'll call Ramona.
She is a home care worker and she's a leader with the
National Domestic Workers Alliance in my district. She's an
immigrant from Honduras. She identifies as black. Ramona has
faced sexual harassment and assault as a domestic worker in
every city she's worked in, but she never reported the
incidents because she didn't know where to turn.
Ms. Yoon your testimony indicated that Ramona's experience
is common among domestic workers. How do we protect domestic
workers from sexual harassment and assault on the job?
Ms. Yoon. Yes. The experience of domestic worker you just
shared is unfortunately too common. Workers know that they have
no recourse, but because they're not currently covered by Title
VII and thus not protected from sexual harassment assault in
their workplace.
This is the reason why we need to pass the Domestic Worker
Bill of Rights to protect individual workers, but also
establish standards across a country in these workplaces.
Ms. Jayapal. Ms. Yoon, Mr. DeCamp seems to deny any racist
motivations behind denying domestic workers protections under
the FLSA, instead suggesting that a narrow reading of the
commerce clause at the time was the only reason these workers
were excluded.
Is that the case? And is there any legitimate reason to
continue excluding domestic workers from the full protections
of the FLSA?
Ms. Yoon. No. That is not true. My reading of the Committee
debates as well as other research on the Roosevelt
administration's drafting of the process depicts a different
story. While domestic service certainly was not comparable to
the agricultural sector in terms of its importance to the
southern economy.
A huge concentration of blacks in the domestic service was
unmatched by any other sector in the southern economy. During
the Committee debates southern legislators compared FLSA to
anti-lynching legislation. I think that statement speaks for
itself. And in terms of what we should do now systemic racism
and sexism motivated the exclusion in 1938, and then 80 years
later this workforce continues to bear the brunt of that
legacy.
We have to think about the costs of not protecting these
essential workers who help our society to function and make all
other work possible. It means that domestic workers are earning
poverty wages and cannot support their own children and family
when they're working to care for other children.
Ms. Jayapal. Thank you so much. I think for Ramona and for
so many others like her we are ready to be the authors of a new
story, and that begins with passing the Domestic Workers Bill
of Rights, thank you so much Madam Chair. I yield back.
Chairwoman Adams. Thank you.
Mr. Owens. Madam Chair can you now hear me? I'm sorry I was
trying to talk earlier, this is Owens.
Chairwoman Adams. Yes, we can.
Mr. Owens. OK.
Chairwoman Adams. I was getting ready to recognize Mr.
Owens of Utah, you have five minutes sir.
Mr. Owens. Thank you, Madam Chair. And thank you for those
who testified today. Let me just start off by saying I totally
agree that in 1938 the racist act by the President Roosevelt to
put in place what he did, not only in this care but also social
security.
It's also a racist act for the democrats to continue to
support the Davis Bacon Act which keeps black business owners
from starting businesses and hiring black employees. This is
not about race. We have small business owners out there, black,
white, Hispanic, Asian, every culture you could possibly think
of.
They are right now producing 50 million jobs in the private
sector. It is not about race, it's about survival. It's taking
a risk, making a profit and then hiring people that you want to
keep around and make sure that they're feeling good in that
environment.
This would devastate the small business owners, no question
about it. A little reminder that it has always been stated as a
fact, those that are most at risk, predominantly my race, would
not get a raise with this, they'll get fired. They'll get a
pink slip. It's proven. It's seen in other places, been shown,
and in Chicago, 8 years ago 92 percent of black, young boys
were unemployed.
A lot of them because of the high minimum wage, and nobody
wanted to hire them with. The other piece of this is the higher
cost will be the labor being the higher cost of food. This
impacts blacks, Hispanics, those at risk, so this is on a fixed
income.
So no, this is not something that will work, and I wish
that Members across the board that come in this position would
try and start a business at some point before we start putting
these type of regulations and dictates on those that are trying
to survive a business.
So that being said, Mr. DeCamp can you elaborate on some of
the reasons that Congress exempted the agriculture
establishment from certain requirements of the FLSA when it was
enacted in 1938. And what makes these workplaces unique from
wages and the hourly wage perspective?
Mr. DeCamp. There's a few things about it. First is that
the nature of the work tends to be a very short season, intends
to involve very long hours during the day when that short
season is happening. We're also talking about work that many of
the workers in that space are migrant, and so they're moving
from place to place.
We're also talking about work where often times the people
that are doing this work are receiving housing and possibly
food subsidy from the employer, certainly housing, sometimes
food. And that affects the calculation of what even is the
wage. And so that's another issue under the FLSA.
I think the main issue with the FLSA, and agricultural work
is the necessary long hours. The purpose behind or one of the
key purposes behind the 40 hour work week under the FLSA is to
encourage spreading of work in a time of high unemployment, so
that you know you're moving work to more workers as opposed to
fewer workers.
And that makes sense when you want to spread the work
around, but when the work requires the long hours, you've got
to find the workers to do this. We're already talking about an
economy where about half the work, at least according to the
written testimony from the witnesses today, is being done by
workers who are undocumented.
This is already a workplace kind of in chaos, and a
workforce that is kind of in chaos. And I think that's just a
recognition of the fact that this work requires long hours
among other things. And it's also very difficult work. Again
the statements that Members have made, and witnesses have made
is absolutely right, it is very demanding work.
Mr. Owens. OK. Thank you so much. For those who do not
understand the fact that when a business owner has to pay more
for the labor, they don't quite understand how that translates
to impacting those of us who have to pay for those services.
You stated the fairness of the Farm Workers Act will likely
result in higher food prices for consumers at the grocery
stores and restaurants.
Again this impacts those of us, like my race, more than
anybody else out there. Can you help those who are listening to
understand why this would be the case?
Mr. DeCamp. Sure. If a business is not able to spread the
work around, so if you're a farm and you have workers and
you're not able to hire 50 percent more workers, and instead
have to use the same workforce working the same long hours, now
you would under this bill have to pay them overtime.
So if you have to pay premium wages for the longer hours,
your labor costs go up. If your labor costs go up, you're
either going to be losing money, or you have to raise your
prices for what you sell in order to not go out of business.
If you raise your prices for what you sell, that then has
ripple effects throughout the chain of distribution, so that
the business that you sell the product to then has to charge a
higher price when it is selling that food in a grocery store,
in a restaurant, or wherever it may be.
Mr. Owens. Thank you, thank you so much and I yield back my
time.
Chairwoman Adams. Thank you. The gentleman's time is up.
The young lady from Minnesota, Ms. Omar you are recognized five
minutes ma'am.
Ms. Omar. Thank you, Chairwoman. The preservation of the
tipped minimum wage system has long lasting effects on
worsening economic outcomes for workers of color today. It
shouldn't be surprising that it is just another system sharing
its roots in the legacy of slavery.
In the post-Civil War United States many black workers were
concentrated in the hospitality industry and designed to
preserve socioeconomic subordination. They were denied base
wages, instead had to work for tips. This tipping model wasn't
changed by the Fair Labor Standard Act, but we have an
opportunity to address this historic discrimination through the
Raise the Wage Act.
My State of Minnesota has already taken the necessary steps
to establish a fair wage for all but is also one of the only
few states that have addressed the tipped minimum wage, largely
due for opposition from the restaurant industry.
Ms. Dixon can you respond to some of the concerns over the
phaseout of the tipped minimum wage hurting profitability and
surging labor costs for local restaurants?
Ms. Dixon. Absolutely. The tipped wage has been $2.13 since
1991, and that's unconscionable. And we are not talking about
phasing it out overnight, we're talking about phasing it out
over time, and as I said in my testimony, the advocates are
open to compromise on that phaseout.
We know that seven states have already done this, so it's
possible, and it's much better for workers. So we're not
advocating for getting rid of tips, but we want tips plus the
minimum wage like in those states. And we really don't want
employers to continue to get this subsidy for their payroll
cost as you mentioned.
Ms. Omar. And why have restaurant workers in Minnesota not
lost their tipped income, or their jobs due to this change?
Ms. Dixon. The amount that employers have to increase their
menu price is very small. And so if we're talking about a
phased in increase over time, we're talking about very small
increases. There was a study in one of the one fair wage areas
that looked at an increase in wages of about 25 percent and the
menu price had to go up by $1.10.
So it's really overblown what folks are saying about
increasing menu cost.
Ms. Omar. I really appreciate that. Overblown is something
that we should highlight because a lot of these policies that
are being pushed by republicans is fear-based and they're not
based in reality because some of us live in some of these
states where progress has been made and have not suffered the
crazy consequences that the republicans like to tell the
American people that they will suffer, so I really do
appreciate your input in that.
Madam Chair I would like to yield the rest of my time to
Mr. Grijalva.
Chairwoman Adams. Yes Mr. Grijalva you are recognized.
Mr. Grijalva. Thank you and I thank the gentlelady for
yielding. Very quickly Madam Chair just thank you and the
Ranking Member for bringing these three pieces of legislation
forward. I appreciate it very much and the witnesses in the
hearing have been very, very good and I appreciate that.
Representative Jayapal, Chairman Scott and myself, I think
these bills are essentially corrective actions to address some
vestiges of what's already been said by the witnesses. Systemic
racist is the standard that codified into law in 1938. And this
double standard that some American workers did not receive
equal protections that others do is basically wrong and rooted
in that racism.
And I think that what these three bills do is provide
equity to these workers, and by correcting that mistake in
1938. And so it's ironic that these now are essential workers
and they're the ones taking the risks, the ones that we depend
on to take the risk for the rest of us to provide services to
the rest of us.
And I think it's time that we treated those workers
equally, and I appreciate the time. Madam Chair I thank you for
the hearing and I yield back, my time back to Ms. Omar.
Chairwoman Adams. Thank you. You've got six minutes, OK,
the lady's time is up. I'm going to yield to Mr. Cawthorn now
from North Carolina. You have five minutes sir.
Mr. Cawthorn. Madam Chairman thank you very much. My
questions are going to be directed at Mr. DeCamp, and Mr.
DeCamp thanks for being on, to all my witnesses, really thank
you for being on.
You know first I want to touch on this idea of imposing a
40-hour work week on farmers. You know as somebody who has
worked on a farm in western North Carolina when I was much
younger, I realize that the hours you have to work are very,
very long, and it's very difficult for these farmers,
especially those who pick specialty crops to be able to have
more workers to spread around because it takes a significant
amount of training.
These workers have to be trained on how to work the
systems, especially if they're in a packing house, or if
they're on picking for any specialty crop. Can you discuss
something I really want to touch on is I believe that after the
global pandemic that we've been through, we saw in the
beginning of COVID-19 how difficult it was to get a lot of the
resources that we had offshore manufacturing to other areas.
If we start imposing a 40-hour work week, and we bankrupt
all of our farmers, we will essentially be offshoring all of
our food processing and food resources off to other countries.
Would you not believe that this would be a terrible national
security threat Mr. DeCamp?
Mr. DeCamp. I don't claim any expertise on national
security. I think generally it would be a bad idea to bankrupt
the farming industry, but what affects that might have on
national security I have no idea.
Mr. Cawthorn. I understand OK. So now let me ask you in
regards to Title VII of the Civil Rights Act of 1964, it
prohibits employment discrimination. This only applies to
employer with 15 or more employees. The Title I of the
Americans With Disability Act also only applies to employers
with 15 or more employees.
The Domestic Worker Bill we're discussing today includes an
astonishing sweeping provision, applying Title VII of the Civil
Rights Act to any employer with at least one employee, reducing
the employee threshold from 15 employees to one. Mr. Decamp can
you discuss the radical nature of this change and what it would
mean for small businesses in the United States with respect to
litigation risk and compliance costs?
Mr. DeCamp. It would be a big change with regard to
exposure. I mean part of the reason why you don't have
typically these laws applying to small businesses, at least at
the Federal level is the commerce clause issue. It's at that
level when the businesses are that small, they're typically
very local.
But also there's a sense that the compliance costs for
small businesses, they don't have the kind of sophistication
that you typically see with larger businesses. They don't have
in-house counsel, they don't have in-house H.R. staff, they
don't necessarily even know what these laws require until they
run afoul with it.
And just the transaction costs of defending a demand letter
from a Plaintiff's lawyer could put a small business out of
business. And so there are lots of good reasons why Congress
has seen fit not to apply most of these laws to very small
businesses.
Mr. Cawthorn. Thank you Mr. DeCamp and in closing you know
I would encourage any of my democratic colleagues on this
Committee to please come to my district and visit a lot of the
farms in my district, and you will see the hours that are
required to work, and it will become abundantly clear to you
that if we impose a 40 hour work week on these farms it will
bankrupt our farmers who are absolutely necessary to the
survival of our country. With that I yield back Madam Chair.
Chairwoman Adams. Thank you, sir. The gentlelady from
Michigan, Ms. Stevens you're recognized five minutes ma'am. Ms.
Stevens? OK. Let me move on to Mr. Yarmuth of Kentucky. You're
recognized for five minutes.
Mr. Yarmuth. Thank you, Madam Chair, and thanks to all the
witnesses for being here. I have to say this is my 15th year in
the House of Representatives, and I have heard the same
arguments raised by republicans for 15 years as to why we
shouldn't raise the minimum wage.
It is bizarre to me that for that length of a period of
time that republicans continue to raise issues that have no
empirical support, yet they continue to say that businesses are
going to go bankrupt, we're going to lose businesses, we're
going to lose jobs. When really they have no basis for saying
that. It's all speculation.
Mr. DeCamp you referenced the CBO report and said that it
said that we would lose 1.4 million jobs if the minimum wage
were raised to $15.00. That's not exactly what the report said.
It said we could lose 1.4 million jobs, so we also could lose
zero jobs.
It also said we could lose more jobs. And that's the
problem with these kinds of reports because people seize on
numbers that really have, they're speculative as well. We have
an economy that is very dynamic that changes very rapidly.
So we know that. Right now in my district, I don't have any
farms in my district. I have a handful of farms, I have a very
urban district, Louisville, Kentucky. And so I haven't talked
to many farmers, but I have talked to a lot of business owners.
And right now the business owners say we wouldn't mind pay
$14.00--$15.00 an hour, we can't find anybody. We can't find
anybody to work.
And so in our district we have UPS, which is our largest
employer, offering $14.25 to start there. We have Walmart and
Amazon. You have distribution facilities right outside my
district paying $15.00 an hour. I think that's probably the
reason that some businesses can't find employees is because
they're not paying enough money, they're just not paying
enough.
And I once had a conversation, this is when I was
campaigning the first time and the minimum wage was $5.25. And
we were talking about raising the minimum wage. And I asked a
McDonald's franchisee who was fighting it, and I said let me
ask you this. If I can say to you and said I've got the
greatest business model in the world, it can't miss, it's a
sure-fire hit.
The only condition is that I have to pay my employees
nothing. I have to have them work for free. What would you say
to me? He said, 'I think I'd say you're crazy.'' I said in
today's world, and this is 15 years ago, in today's world
what's the difference between $5.25 an hour and zero?
And I would ask the same question today. What's the
difference between $7.25 an hour and zero? And the thing I
would also say is at least I still have yet to hear a
republican make a counteroffer saying well $15.00 is too much.
Well we've got democrats saying that.
Joe Manchin saying that. He says I could go to $11.00. I
don't hear republicans saying that. They just say we can't
afford to raise the minimum wage because it will hurt small
businesses, it will hurt farm workers, it will hurt employers.
What about the people who are working? We pay a lot of
respect to these people. Last summer we were talking about, we
were praising bus drivers and grocery store clerks, and people
who stock the shelves and all of these people as being critical
employees, farm workers as well.
Well why don't we pay them like they're critical? We just
don't do it. And there's one more anecdote. I don't have
questions for the witnesses, but back in 2008 my brother is in
the barbecue restaurant business. We were talking about the
minimum wage and he had always voted republican because he
didn't want to pay as much tax.
And he said to me, he called me the summer of 2008 and said
John you'll be happy to know that Judy his wife, Judy and I are
maxing out to Barack Obama, and we are voting for all democrats
this year. And I said that's great Bob what was your epiphany?
He said well I finally figured out that if nobody can
afford barbecue it doesn't matter what my tax rate is. And
that's the problem we have right now. Not enough people can
afford barbecue. Not enough people make enough money to have a
decent standard of living.
And this Congress can and should be the Congress that
finally takes a step in that direction and says we're going to
make sure that every America who's working hard has a decent
standard of living. That's what all these proposals are about,
and I strongly support them. With that I yield back Madam
Chair.
Chairman Adams. Thank you, sir. Working hard is not enough
if you don't make enough. I want to recognize the gentlelady
from Michigan now Ms. Stevens you have five minutes thank you.
Ms. Stevens. Thank you, Madam Chair, thank you. Thank you
for having this hearing and to our phenomenal witnesses, Ms.
Romero, Ms. Yoon and Ms. Dixon and for your just incredible
background and expertise and knowledge, particular thanks to
our Chair for going to the history and looking at the root of
some of these causes and how they impact us today.
Mr. Decamp whatever it is you do you know I guess it's you
know we're hearing your viewpoint, although it doesn't seem to
be importing into the reality that so many of our workers are
facing. I'm in Michigan and I see it and we feel it, and we
talk about our workers, our food service workers, the people
behind the scenes, the lunch ladies who get forgotten, you
know, who have been a major part of what we've been living
through with this pandemic.
You know the first people to step up in the middle of this
shutdown and making sure our folks, our families had access to
prepared meals, when all of a sudden everything was shouldered
at home. You know, making sure they're getting their hero pay
and their due and you know they're squeezed.
So, I'd love to hear from Ms. Dixon on you know some of
these other forgotten workers in our economy, particularly you
know what is dubbed the lunch lady, but also in our food
service, and dovetailing off of what Ms. Omar was talking about
with our Raise the Wage.
You know I'm a proud co-sponsor of the Raise the Wage Act,
and you know it's going to phaseout the tipped wage, and I'm
hearing from some forms of constituents who hold tipped wage
jobs, that they're concerned about the take home pay, and
they're concerned it would go down.
So, Ms. Dixon do you also mind just kind of sharing some
comments about what you would say to those workers as well
based on some of what we've heard here today?
Ms. Dixon. Sure. So one of the things to talk about is
who's going to benefit from the Raise the Wage Act? And in
fact, 90 percent of workers who are earning at or near the
minimum wage are over the age of 20 and the majority of the
workers are adult women, many of whom have attended college and
who have children.
So more than half, 52 percent would benefit our adults ages
25 to 54, and only one in 10 is a teenager. So nearly 6 in 10
are women, half work full-time and more than 4 in 10 have some
college experience. More than a quarter have children.
And then to your other question, could you repeat the other
question please?
Ms. Stevens. I just wanted some comments about you know
we've got a lot of brilliant comments on domestic workers or
farm workers, obviously you have a big swath with your
portfolio and your organization, and I was just looking for
some additional feedback around our cafeteria workers or other
food service workers who aren't part of the tipped wage, but
also have been subject to some of these draconian principles
that have held these workers back because they're stuck at an
unfair wage, be it the minimum wage where they're not even able
to work full-time.
And if you had any data around you know not just our tipped
workers in food service, but our you know behind the scenes in
our schools with our cafeterias or anything along those lines.
Ms. Dixon. I don't have anything very specific about them.
What I will say is that they are a part of the way in which our
labor market is segregated right? And certain workers are
shunted into low-paying jobs that are not compensated at the
rate that they should be, so they're underpaid.
And we need to help those workers in the same way that
we're helping tipped workers. So the one fair wage would most
likely apply to these women that you were talking about in the
cafeteria.
And then one other thing you had mentioned was around
what's going to happen to their tips, are their tips going to
go down? And I would point out that data from the one fair wage
demonstrates that tipped workers earn better wages and make the
same or better tips in states that allow them to be paid above
the subminimum wage.
So this custom of tipping it's deeply engrained in our
culture, and people are happy to continue to do that to have
generous tipping for good service. And polling indicates that
time and time again customers are also happy to pay higher
prices in order to ensure that workers get vastly better wages.
Ms. Stevens. And while I still have you Ms. Dixon, this is
a big question, so maybe we can just do it for the record about
you know what does the history of these you know racist assay
exclusions teach us about the link between worker's rights and
power at the ballot box?
And I know Chairman I have 10 seconds left, so maybe we can
pick that one up, but is there a linkage Ms. Dixon?
Ms. Dixon. There absolutely is a linkage. Just because you
have constitutional right or law says you do, we know from
history you don't, and it can be intimidation or voter
suppression.
Ms. Stevens. Thank you. I yield back.
Chairwoman Adams. Thank you very much. I see Mr. Jones is
with us, so I'm going to recognize the gentleman from New York,
Mr. Jones, you have five minutes sir.
Mr. Jones. Thank you, Madam Chair, and thank you to all of
the witnesses for your testimony. It is so important that we
shine the light on this issue because it provides yet another
example of how the legacy of Jim Crow continues to harm people
of color in this country.
The history of the Fair Labor Standards Act is well
documented, and as we've heard here today the exclusion of farm
workers, domestic workers, and tipped workers in the law was
done intentionally to exclude black workers from the basic pay
and worker protections afforded to white workers under this
landmark legislation.
There is no good reason why nearly a century later we
continue to have these exclusions in the law. Congress's
failure to act upholds a system that oppresses working class
people of color, and especially women of color by the way. That
is in fact what Congress in 1938 intended.
Now my grandmother was a domestic worker who spent long
hours cleaning homes, and she worked well past the age of
retirement because she simply could not afford to retire when
most people do. Ms. Yoon, you mentioned in your testimony that
domestic work was often seen as not real work. How did that
perception prevent the fair and full protection of domestic
workers under the Fair Labor Standards Act?
And do we still hear echoes of this argument today in the
debate overextending wage an hour protections to domestic
workers?
Ms. Yoon. Thank you for your question, and thanks for
sharing your own story. I think as I've talked about in my
testimony the long-standing association of domestic work is
unpaid labor, as women's labor, as labor of black women harking
back to the days of slavery, in leave of other women of color
and working women.
I think all contribute to devaluing this labor as
unskilled, and therefore deemed not worth of protection and
industry standards. I think all the parents and aunts and
uncles, and grandparents on this Committee and my fellow
panelists will know that the skills that are needed to raise a
child to thrive.
Skills that are needed to care for your own aging parent
who may have dementia, to live with dignity, or to care for a
kid with a complex medical condition so that that kid could
sleep in her own bed right. All of this takes an incredible
amount of skill, but we continue to devalue this work, we
devalued it back then in 1938, and I think we continued to
devalue it today.
I think the most recent debate about whether care is an
infrastructure in our economy as we talk about how we recover
our country really speaks to this issue. Our care giving
infrastructure collapsed during the pandemic. 800,000 left the
workforce last September alone, when we were back to 1988
levels of women workforce participation.
Yet some say, largely men, say it's not infrastructure
because it's not roads and bridges, even though this investment
in the care infrastructure will precisely allow, not just
women, but all parents to go back to work, and that will
continue to fuel our economy back.
Mr. Jones. Thank you so much Ms. Yoon, and of course a few
days ago I introduced the Universal Child Care Early Learning
Act with Senator Elizabeth Warren which would fully provide for
universal childcare in this country, childcare indeed being
infrastructure. And I could tell you, you know what my
grandmother did was real work. I know that because I was with
her often times when daycare was too expensive, she had to take
me to clean homes with her.
Now Ms. Dixon, Mr. DeCamp's testimony seems to question
whether the exclusion of farm workers and domestic workers in
New Deal legislation, and the Fair Labors Standards Act is
rooted in racism. He talks about there being an absence of
compelling evidence in his written testimony.
What compelling evidence do we have on this, and why is
denying the roots of these exclusions so harmful?
Ms. Dixon. Well my grandmother used to say we know better,
do better. And we know better, and we have all of this evidence
that tells us that these exclusions are harmful, they are
unnecessary, and we need to move on from here.
And so I think the main thing to understand here is that
this argument is rooted in the commerce clause, right? To say
that in the commerce clause there was no authority to actually
put these folks in the Fair Labor Standards Act, but this
argument is a red herring because the constitutional
justification issue was raised by one senator during a
legislative debate over the bill.
And that's suspect on its face. The Supreme Court had
already changed the interpretation of the Commerce Act by the
time the FLSA was passed, so we know that that is just
overblown and not accurate.
Chairwoman Adams. OK. Thank you, the gentleman is out of
time. Are there any Members on the platform who have not been
recognized and would like to ask questions? OK. Well I want to
thank all of the witnesses.
I want to remind my colleagues that pursuant to Committee
practice, materials for submission to the hearing record must
be submitted to the Clerk within 14 days following the last day
of the hearing, so by the close of business on May 17,
preferably in Microsoft Word format.
The materials submitted must address the subject matter of
the hearing and only a Member of the Subcommittee or an invited
witness may submit materials for inclusion in the hearing
record. Documents are limited to 50 pages each. A document
longer than 50 pages will be incorporated into the record via
an internet link that you must provide to the Committee Clerk
within the required timeframe, so please recognize that in the
future that link may no longer work.
Pursuant to House rules and regulations items for the
record should be submitted to the Clerk electronically by
emailing submission to [email protected].
Again, I want to thank the witnesses for their participation
today. Members of the Subcommittee may have some additional
questions for you, and we ask the witnesses to please respond
to those questions in writing.
The hearing record will be held open for 14 days in order
to receive those responses. I remind my colleagues as well that
pursuant to Committee practice, witness questions for the
hearing record must be submitted to the Majority Committee
Staff or Committee Clerk within 7 days. The questions submitted
must address the subject matter of the hearing.
I want to now recognize the distinguished Ranking Member
for a closing statement. You're recognized Mr. Keller.
Mr. Keller. Thank you, Madam Chair. This hearing highlights
the need to provide flexibility to the American workforce.
Continually, we hear from farmers, those in the restaurant
industry, small business operators and others in Pennsylvania's
12th Congressional District about their challenges of
recruiting and retaining employees during our economic recovery
from COVID-19.
We need to be giving employers the tools they need to bring
back the American workforce, not creating unworkable mandates
that will slow economic recovery. Employers understand the
unique challenges facing their businesses, as well as the needs
of their employees and work very hard to effectively tailor
their workforce practices accordingly.
I look forward to advancing forward looking policy
solutions that provide economic freedom and opportunity for
employers and employees in the workplace and help them bring
their businesses back stronger than ever. Madam Chair, I ask
unanimous consent to enter into the record letters from the
American Farm Bureau Federation and the National Restaurant
Association, statements from the Restaurant Workers of America,
and a letter from Valerie J. Graham, who is a tipped worker in
Washington, DC. in opposition to the legislation we are
discussing here today. Thank you and I yield back.
Chairwoman Adams. Thank you. So ordered.
Chairwoman Adams. I now recognize myself for the purpose of
making my closing statement. I want to thank our expert
witnesses for being with us today and reiterate how grateful I
am for the diverse perspectives and expertise that you've
brought to our discussion.
We cannot build a more equitable future for this country
without first confronting the active legacy of slavery
throughout our institutions and recognizing the Federal
Government's continued role in perpetuating racial
discrimination.
This is precisely what we did today. We recognized the
significant influence racist law makers and Jim Crow era
policies played in inserting racially motivated exclusions into
our Nation's foundational labor laws.
We examined how expansions for worker protections under the
Fair Labor Standards Act has helped narrow the racial wage gap
as well as how persistent exclusions continue to disadvantage
workers of color today.
Most importantly however, we affirmed our commitment to
passing legislation that will finally eliminate these
discriminatory exclusions in the FLSA, and extend basic worker
protections to farm workers, domestic workers and tipped
workers. So thank you all again to our witnesses. I look
forward to continuing to work with my colleagues to confront of
the legacies of slavery and secure equal worker protections for
workers of color and forge an economy where everyone can
succeed.
I continue to say that working hard is not enough if you
don't make enough. And so if there's no further business
without objection the Subcommittee stands adjourned.
[Additional submissions by Chairwoman Adams follow:]
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[Additional submissions by Mr. Keller follow:]
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[Additional submission by Ms. Omar follow:]
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[Questions submitted for the record and the responses by
Ms. Dixon follow:]
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[Questions submitted for the record and the responses by
Ms. Romero follow:]
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[Questions submitted for the record and the responses by
Ms. Yoon follow:]
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[Whereupon, at 1:47 p.m., the Subcommittee was adjourned.]