Congratulations! You’ve survived another mid-term election. Perhaps you’ve spent this election cycle drinking tea, or maybe you’ve spent your time supporting every Californian’s right to ingest and enjoy other types of leaves. You’ve also likely spent considerable time reviewing the U.S. Constitution looking for that pesky “separation of church and state” concept (it can be so hard to find buried in our very first amendment…).
Regardless of your personal politics, you probably haven’t emerged unscathed from the 24-hour news cycle’s obsession with the personal lives of America’s candidates. I, for one, could devote this post (and many more) to simply reiterating some of the more comical stories that have hit the papers about our government hopefuls. But I am an employment lawyer, which means that until Christine O’Donnell wrongfully terminates and then hexes her own cleaning lady for disturbing the Wiccan altar in her den, my obvious pick is the debacle surrounding Meg Whitman and her now-(in)famous housekeeper, Nicandra Diaz Santillan.
At this point, you’re either shaking your head in agreement with me while rolling your eyes at Meg’s mistake, or getting all flustered about the “lamestream media” making much ado about nothing (in which case, I would have to ask — you really think this blog is [main/lame]stream?). But do you even really know what she did — or, more importantly, why it might be wrong? My guess is: probably not.
Which is why, as we all collectively exhale at the end of another grueling election season, I offer you — the would-be candidates, the armchair political analysts, and the mildly nervous readers with housekeepers of their own — this handy-dandy guide to the Great Meg Whitman “Nannygate 2.0: Now Featuring Gloria Allred” Scandal of 2010 (Oh, you’d forgotten about Zoe Baird and Nannygate? So, apparently, had Meg.):
1. “Really? I’m not allowed to have undocumented workers performing services in my home? When did that happen?” The Whitman-Diaz Santillan scandal broke when it was reported that Ms. Diaz Santillan was not eligible to work in the United States, but had provided services as a housekeeper to Meg Whitman and her family for nine years. In the United States, this practice is illegal. When it comes to the law, an employer is an employer regardless of whether services are performed in a corporate setting or in a private residence (and if this scandal involved Eliot Spitzer or David Vitter, a very different joke would be in play here). As a result, Meg Whitman had the same legal obligation to ensure that Ms. Diaz Santillan was eligible to work in the United States as she did with all of the employees who worked at eBay. She did the right thing initially by having Ms. Diaz Santillan complete a Form I-9 and provide documents verifying her identity and employment authorization. But, when Whitman received a pesky letter from the IRS stating that Ms. Diaz Santillan’s Social Security number did not match her name (often referred to as a “no-match letter”) — i.e., potential evidence that Ms. Diaz Santillan’s work eligibility status was not what she claimed it to be — Whitman and her husband did not take appropriate action. Ruh-roh. Lesson learned: household employers need to follow the immigration laws, too.
2. “What? People who work in my home are employees?! And I actually have to pay them properly?” Once Gloria Allred got involved — thereby escalating the situation from potential nuisance to full-blown media circus — a claim was filed on Ms. Diaz Santillan’s behalf with the California Department of Industrial Relations, alleging unpaid wages and mileage reimbursements. Although the details of the claim have not been made public, it has been reported that the claim is for $6,210. We do not know whether Meg Whitman owes this money, but we do know that she can certainly afford to pay it. If the claims are true, how is it possible that someone like Meg Whitman leaves herself open to $6,210 in exposure? Unfortunately, even the most well-intentioned employers often violate California’s wage and hour laws. In fact, it’s so easy to make a mistake that it’s almost rare to be in complete compliance (which is why I remain gainfully employed).
In any event, a lot of people don’t know that household employees are entitled to overtime (they are), that California overtime law is different from federal overtime law (it is), and that if your housekeeper runs an errand for you, you must reimburse him or her for mileage (you do). Even more surprisingly, an employer who terminates an employee without “truing up” any outstanding compensation that is owed may be on the hook for 30 days of pay as a penalty (for an 8-hour-a-day minimum wage domestic employee, that comes to $2,000 in penalties alone if you aren’t fully up-to-date on wages owed at the time of termination). Unlike Meg Whitman, I don’t have an extra few thousand dollars lying around to pay penalties that are completely avoidable. Lesson learned: if someone works in your home, they are most likely an employee; save yourself a lot of time and money later by ensuring that you’re paying them properly throughout their employment.
3. “I actually have to fire my household employees if I find out that they’re not eligible to work in the United States? Even if they are like members of my family? What if I’m not running for office?” Meg Whitman claims that she fired Ms. Diaz-Santillan’s employment this past June when she finally discovered that Ms. Diaz-Santillan had lied about her eligibility to work in the United States. Ms. Diaz-Santillan claims that Meg Whitman knew all along that she was undocumented and fired her simply to avoid disrupting her campaign (oops, I guess that didn’t work). Although we do not know when she actually found out about her housekeeper’s status, and although the seemingly unceremonious firing only magnified the scorn of critics on the left, according to the current immigration laws, Meg Whitman’s firing of her housekeeper was actually the right thing to do from a compliance perspective. Lesson learned: as heartless as it may (or may not, depending on your politics) sound, the law protects those who refuse to employ illegal immigrants (voters may or may not).
We won’t know for certain whether the very public scandal surrounding Meg Whitman’s private employee impacted the outcome of the election. (We do know, however, that Whitmanreportedly drew only 40% of female voters, and an embarrassing 14% of Latino voters, so, you know, draw your own conclusions.) But hopefully the voters who have employees of their own in their homes will benefit from the lessons re-learned from Meg’s mistake. And, when you’re next discussing the election with your friends and colleagues, at least you can shake your head and roll your eyes when talking about Meg Whitman’s maid — whether at Meg or at the media — and actually know why you’re doing it.