Giving "The Help" the Silent Treatment: How Alabama's New Immigration Law Punishes Domestic Workers, Ignores Certain Employers, and Shortchanges Us All,

Source: Ida Danielle Mashburn-Myrick, Alabama Law Review, Vol. 64 no. 2, 2012

On June 9, 2011, Governor Robert Bentley signed what has been described as the “nation’s toughest immigration law.” The primary goal of House Bill 56 (H.B. 56), also known as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, is to drive all undocumented immigrants out of Alabama and dissuade others from coming. On September 28, 2011, Federal District Court Judge Sharon Lovelace Blackburn upheld major portions of the bill, and many provisions are now in effect. Even prior to its enactment the law seemed to be achieving its aim: Hispanics are fleeing the state in droves.

The new legislation makes it illegal to “knowingly employ, hire for employment, or continue to employ an unauthorized alien.” Curiously, though, the law exempts employers of “casual domestic labor within the household” from this provision. This exemption reinforces the notion that domestic work is not “real work,” and it maintains the underground status of domestic labor as an employment field. While excluding domestic workers from coverage by labor and employment laws marginalizes them and the industry they work in, applying punitive policies to domestic workers in an effort to purge the market of these workers would neither elevate their profession nor discourage illegal immigration. A better solution would be to institute policies that ensure fair wages and working conditions for domestic workers, thereby serving three public policy goals: (1) protecting workers’ basic human rights; (2) making private household labor a more desirable work choice (thus encouraging documented workers to self-select into the field to satisfy demand); and (3) discouraging illegal immigration….

…This Note examines H.B. 56’s employment provisions, focusing on the exemption for private household workers. Part I considers the goals of the bill in light of Alabama’s shifting immigration demographics. It then looks at the bill’s exemption for domestic employers, paying special attention to those persons who tend to hold private household jobs. Part II juxtaposes H.B. 56’s domestic-employer exemption with other major employment laws and explains how exempting domestic servants from legislation discourages documented workers from entering or remaining in the field. Part III offers an explanation of why labor and employment legislation often exempts or otherwise fails to protect domestic workers. Finally, Part IV draws out some implications of H.B. 56’s exemption for domestic employers and argues that policies that seek to protect rather than punish workers are better tailored to guarantee basic human rights, ensure that the labor demands of Alabama’s working women are met, and discourage illegal immigration…

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