Coronavirus and the Constitution – II: Household Staff and Employment Protection: Obligations, not Charity [Guest Post]

[This is a Guest Post by Udit Bhatia].

Over the last few days, concerns have been voiced over workers in India’s informal sector and how restrictions imposed by the government due to covid-19 might impact them. In his address to the nation, the Prime Minister pleaded with citizens that they continue to pay their employees who would suffer disproportionately as a result of the ongoing situation. Gautam Bhatia has recently written on the rights of employees to a safe working environment under the constitutional framework (in particular, Article 23 of the Indian constitution). I want to supplement his argument by emphasising protections that private citizens owe to their household staff in their capacity as employers. The category of ‘household staff’ here includes those who provide domestic service, such as cleaners, cooks, laundry staff, security staff, among others. In this note, I make the case for an obligation on behalf of individual employers to offer continuing income to their household staff as a matter of duty rather than a charitable good. I deliberately focus here on the duties of individual citizens (rather than corporations) as employers. The argument outlined here may well be extended to corporations. However, corporations, unlike private citizens, enjoy certain privileges from the state such as entity shielding, asset lock-in and limited liability, which are unavailable in ordinary contracts between individuals.  For this reason, the obligations corporations should bear as employers are likely more stringent than those which might be placed on individuals. The argument in this note, therefore, applies a fortiori to corporations as well.

The preliminary intuition for my argument is that the absence of an adequate welfare state places some kind of obligations on relatively well-off citizens to protect the employment status and income of their household employees. In India, household staff enjoy few protections from the state. There exists little by way of a welfare system that is equipped to fulfil the basic needs and protect core rights of citizens. For many, it is only employment by private individuals that goes some way towards the protection of these rights and interests. Simultaneously, the absence of the welfare state is a trade-off contributing to the wealth and advantage of the well-off. The rich are rich, at least in part, because of the absence of more robust redistributive policies that would enable the strengthening of a welfare system for the poor. Why these facts should place well-off citizens under an obligation to protect their household staff’s employment, however, requires further scrutiny.

Case 1: Imagine I take away my neighbour’s oven without good reason. And suppose that the oven is all he possesses for the purposes of cooking. It would be fairly unproblematic to suggest that I now have a duty to compensate for my actions by cooking my neighbour a meal (assuming I am unable for some reason to return his oven immediately). For our purposes, this scenario runs into a crucial objection. The relatively wealthy, as a class, may certainly be held complicit for the weak safety net available to the poor. It is likely that their positive actions, such as the politicians they elect, and their omissions, such as their unwillingness to speak out about the gaps in the social safety net, render them complicit in morally relevant ways. In such cases, there appear to be remedial duties that well-off citizens owe to the poor as a result of their complicity. However, it would be hard to draw implications from this point about duties that individual members of the well-off class hold towards the poor. The problem, of course, is that some members among the class of relatively well-off may (perhaps fairly) claim to be blameless: they may not have voted for the current government, or they may have lobbied for greater social security for the poor, for instance. Let us call this the blamelessness problem.

Case 2: A second hypothetical case can help address the blameless problem. Imagine that an oven is all that my neighbour possesses for the purposes of cooking. Now suppose a visitor, without my knowledge, took away the oven. The visitor then proceeded to buy me a new television set with proceeds from the sale of the oven. After doing so, he became untraceable—or perhaps is simply unwilling to offer any compensation to my neighbour.  I think it’s fair to suggest that I have a duty to cook for my neighbour in this case. This is because, even though I may not have caused his disadvantage, I unjustly benefit from it. To the extent that I do not liquidate the television set and buy back his oven, I have a duty to ensure that he continues to have dinner. This example overcomes the challenge posed by the blamelessness problem. Here, one’s restitutive duty is not tied to one’s blameworthiness for some disadvantage suffered by others. Rather, benefitting from an injustice to the detriment of others, even when one is blameless, gives rise to a duty to ‘make up’ some of the disadvantaged party’s loss. The intuition underlying this argument is a fairly familiar one. If we belong to an ethnic group that enjoys unfair advantage, we have a duty to mitigate the costs suffered by disadvantaged groups, regardless of our non-complicity in bringing about unfair social structures around ethnicity. Citizens of wealthy states, who have historically benefitted from industrialisation, have a weightier duty to offset the costs of climate change even if they are not themselves directly responsible for CO2 emissions.

The retreat of the welfare state may not be attributed to the relatively well-off. However, insofar as the relatively advantaged continue to benefit from it, they nevertheless have a duty to mitigate the costs suffered by the less advantaged. Thus, we insist that the poor are owed duties by well-off citizens qua beneficiaries—rather than perpetrators of harms—of the weakness of a social safety net for the poor.  There is, of course, a final problem with case 2. It only shows why the well-off have a duty to make up for the disadvantages suffered by the poor due to the absence of a social safety net. It does not tell us why there are specific obligations that the well-off owe to poor staff members who they employ, as opposed to duties they bear towards the poor, more generally. Let us call this the specification problem.

Case 3: Let me now turn to an example that may help us address the specification problem, showing us why well-off employers hold a restitutive duty specifically to their household staff. Suppose my neighbour owns, in addition to his oven, a microwave which he can use for cooking. Suppose he necessarily requires at least one of these two products for cooking his meals. Now imagine, again, that a visitor takes away my neighbour’s oven, using the proceeds from its sale to buy me a television set. In this example, my neighbour still possesses a microwave, which he can use for cooking his meals. As such, I may owe him some compensation, but it is unclear that I should cook for him, since he can continue to prepare his own meals. But imagine that the microwave he possesses is one that I had lent him. I think it’s fair to suggest that I should not, under the present circumstances, take away the microwave. Since I benefit from his lack of an oven, I have a duty to mitigate any loss to his capacity to prepare his meal. If recalling my borrowed microwave means he is no longer able to cook, I have a duty in this instance, to refrain from depriving him of his means to cook; my unjustly benefitting from his loss of the oven means I should refrain from placing him in circumstances which would exacerbate the costs of his unfair loss.

This case, I think, shows how the absence of a welfare state is connected with the way we should think about household employment. Since the relatively well-off unjustly benefit from the absence of a welfare state to the detriment of the poor, they have a duty to refrain from placing the poor in a condition which would exacerbate costs of the absence of the welfare state. Insofar as employment (and income from it) provides the one mitigating factor that the poor are able to rely on—like the microwave in our example—the well-off have a duty to refrain from jeopardising this in the absence of a social safety net. This case helps avoid the specification problem outlined previously. It shows why restitutive duties arising from unjust benefit pertain specifically to employment, and place an obligation on advantaged citizens to protect the employment status of poor citizens.

The Prime Minister’s plea that employers continue to pay their household staff entirely misses the normative relationship in which private employers and their household staff find themselves. Income, in the absence of a welfare state, and specifically, in the context of a life-threatening pandemic, is a duty owed to employees—not an optional benefit that the government should be pleading on their behalf. To frame the protection of such employment as an act of charity or kindness is to add disrespect to a moral injury we are under an obligation to redress.

7 thoughts on “Coronavirus and the Constitution – II: Household Staff and Employment Protection: Obligations, not Charity [Guest Post]

  1. This is a great argument Mr Udit Bhatia, and well reasoned too. However, for the purpose of a thought exercise, I have a question. Your article wonderfully illustrates how continuing payments to your domestic workers is not charity but an obligation, however, through the analogy you draw, would a domestic worker not be entitled to payments regardless of the work he does, since the work is his source of income. Of course, I understand the context in which your argument has been made, however, taking this logic to its conclusion, would a domestic worker not be entitled to payment from his employer regardless of whether he did the work properly or even turned up to work? And if he would, would this not be in conflict with the implicit understanding that is the foundation of the contract between the domestic worker and the employer, that he does his work to the satisfaction of the employer. I ask this specifically with regards to a scenario (completely hypothetical) where a domestic worker has no employment aside from his current contract with the employer because of his inefficiency. At this point, the employer could not remove him because the income is the one mitigating factor that the worker relies on, however, his current employer also wishes to remove him because of his inefficiency. How would your arrangement deal with an issue like this?

    • Mr Utkarsh your question is valid. However, I think this post talks about the responsibility of the well off in the situation of a pandemic like the one we have going on at present. Once the situation becomes normal again, the condition of the worker completing his work to the satisfaction of the employer can come into picture. Here, we are looking at a scenario where due to the pandemic, it is not possible for the domestic help to come home and not a situation where the domestic help voluntarily decides to skip work and is asking for his/her salary under the garb of the responsibility of the well off to fill in the gaps created in the society due to the absence of an adequate welfare state.
      I am a still a student of law, so any responses and corrections to my reply shall be welcomed and appreciated.

  2. Hi Mr. Udit,

    I disagree with the theory proposed in the above post. When a legal duty is cast upon a particular person or a class of persons to do a particular thing, it confers a corresponding right to another to receive the benefit of such action. In the situation at hand, the duty is ostensibly cast on the employer of household staff and the corresponding right to benefit from payment without work is to be enjoyed by the household staff.

    However during the course of the argument, the duty seems to shift to the ‘relatively well-off employer’ who employs household staff since the ‘relatively well-off person has derived the benefits of the lack of a welfare state. This becomes problematic because wherever a duty is cast upon a particular person or a class of persons, that class of persons must be capable of being distinctly identified based on objective criteria. This provides a clear identification of the class of persons in whom the corresponding right is vested.

    One may find it difficult to objectively define people who are relatively well-off employers and persons who are employers yet not relatively well-off (I assume that the duty has not been cast on all employers of domestic help, since it has been classified by the words relatively well-off).

    For instance, an employer living by oneself and running a business yielding an average monthly income of Rs.30,000 may employ a cook and pay him/her Rs.5,000 per month for the work. However, in the current situation of the pandemic, the employer may be forced to close/reduce her business, therefore mitigating the average monthly income to Rs.10,000 to Rs.15,000 so that it suffices to meet her monthly expenditure without accounting for the salary of the cook. In the event such a person is young person starting out on their own with minimal savings, to cast an additional duty to keep on the domestic help and pay his/her salary would be an unfair burden on such a person. It may well be argued that to cast an actionable duty on such a person would be an infringement of his/her own right to life. Could such a person be classified as. relatively well-off person?

    The aforesaid instance is only an illustration. There may be several such cases with several other factors involved which are to be taken into consideration before the decision to keep on and pay the domestic help for the duration of the pandemic is made. Due to the variety of factors that may be validly considered before making such a decision, it becomes seemingly impossible to objectively classify persons as ‘relatively well-off’ otherwise. If such a classification is not possible, it would not be possible to identify the persons upon whom the duty to keep on the household staff is cast. In consequence it would be impossible to objectively identify the persons who have a right to be kept on in employment and paid. Therefore, a legal duty cannot be cast on an indeterminate class of persons.

    However, I believe that a moral duty lies upon an employer who has the capacity to sustain the employment of household staff in times such as these.

  3. Hi Rahul. Thanks for your comment. My argument, of course, is a normative one. The point here is to outline the moral case for duties towards household staff rather than a legal argument for how this would be operationalised. But one simple way of going about things might be to insist on payment of salary dues as the default rule while allowing for exceptions with respect to genuine mitigating circumstances. That said, mitigating circumstances would need to be quite narrowly defined so as to not give employers a get-out clause: as your post suggests, a threat to that employer’s “right to life”. Given the disposable income and savings many if not most employers of household staff typically possess, it’s not obvious that they’ll be able to override their duty to pay on these grounds.

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