Leonora and Fernando* came to NWJP with an all too common story. They worked in a restaurant, as a cook and dishwasher. For years they had worked long hours, six to seven days a week, doing whatever needed done behind the scenes in the restaurant to bring amazing food to the table on sparkling clean dishes.
Despite their tireless work their paychecks never quite seemed right. They were paid for most of their time, though not the 15-20 minutes they were often required to come in before their shift. And they were not paid an overtime premium for any of their many hours over 40 in a given week.
This is one of the most common stories we hear at NWJP. The Oregon restaurant industry is thriving; it has brought innovative, delicious, and ethically sourced food into the spotlight. But it also has a serious problem with wage theft, especially among those workers that are tucked away behind the scenes, often invisible to customers.
Fortunately Leonora and Fernando's story ends well. Confronted with the evidence, the restaurant owner quickly acknowledged her wrongs and we were able to negotiate a resolution that resulted in our clients receiving all their unpaid wages, and significant penalties, as well, to help compensate them for the time and energy they had to put into enforcing their rights.
Not all workers are as successful in fighting their exploitation. Which is why we have to find a way to improve the food scene in Oregon from the inside out and make treating workers ethically as important as finding ethically sourced ingredients.
Two cable installers who had worked for Cable Communications, Inc. (CCI) brought claims for overtime wages for hours in excess of forty hours in a week. One of the workers had refused to work on Saturdays if he wasn’t paid overtime for this work and was fired as a result. CCI had a complicated bonus plan that reduced the installers’ bonus when they worked more than forty hours in a week so that installers received little or no extra pay for overtime hours. The workers claimed that the bonus plan violated federal overtime law, and that CCI’s firing of the worker in response to his objections to the plan violated Oregon’s whistle-blower statute.
The federal district court dismissed these claims, holding that the bonus scheme was not covered by federal overtime law, and that, to be protected as a whistle-blower, a worker would have had to complain to someone outside the company, not just to supervisors, as happened here.
NWJP worked with the workers’ private attorneys to bring an appeal in the Ninth Circuit Court of Appeals. The appellate court recently published its opinion in favor of the workers on both points. It held that CCI’s bonus plan violated the federal overtime law, since it frustrated to purposes of the law to make long work weeks more expensive and to reward workers for extra-long work weeks. Further, analyzing the legislative history of Oregon’s whistle-blower statute (which NWJP had advocated with the Oregon Trial Lawyers Association), the court concluded that the legislature had intended also to protect workers whose only complaint was internal to their employer’s company.
Interestingly, some of the testimony upon which the court relied was given by our own paralegal, Patricia Laguna, when she had been an NWJP client, talking about her own work situation. Thanks, Pati.
The employer, Portland Specialty Baking, LLC, manufactures baked goods such as bagels, pretzels, and hand pies that are sold under the Franz brand name and at Starbucks and Jamba Juice.
The employer claims that it was justified in paying only the higher of daily overtime or weekly overtime, but not both, based on a technical assistance publication published by the Oregon Bureau of Labor and Industries (BOLI). In response to the lawsuit, BOLI’s Wage and Hour Division issued a formal interpretation saying that employers must pay both manufacturing and weekly overtime, as NWJP’s clients claim. BOLI changed its website and materials to make it clear that manufacturing employers must pay both types of overtime.
The interpretation will apply not only to the employees in this lawsuit, but to an estimated 187,477 manufacturing workers in Oregon, who will now be compensated for working more than 10 hours in a day and any hours worked over 40 in a week.
While we usually focus on local news in our updates, these two victories for farmworkers in Washington and California are highly significant.
In Washington, three years of organizing have led to a historic victory for workers at Sakuma Brothers Farms. The campaign included a boycott of Driscoll’s berries and several actions in the Portland area. Last week, workers voted overwhelmingly (192-55) to join a union, and are demanding a contract guaranteeing a $15 minimum wage and sick leave.
Meanwhile, in California, farmworkers are finally on track to receive the same overtime pay that workers in other industries receive: time and a half for more than eight hours in a day or 40 hours in a week. Farmworkers are still unfairly excluded from most of the rights enshrined by the FLSA, but this bill signed into law last week represents a major victory.
by Corinna Spencer-Scheurich, NWJP Deputy Director Photo by Julia Freeman-Wolpert via Freeimages.com
NWJP recently joined an important appeal to the 9th Circuit Court of Appeals to protect two important rights: that of cable installers to earn overtime and that of private employees to protection under the state's whistleblower law.
Matteo Brunozzi worked for Cable Communications, Inc. (CCI) installing cable television and internet services for Comcast. CCI had a complicated piece rate and bonus scheme. Attempting to avoid overtime liability, CCI gave its employees a bonus that was reduced if they did not finish their assigned installations within the 40-hour work week. But because not finishing installations wasn't an option, the more Brunozzi worked, the more his bonus was reduced. This left him with essentially the same weekly pay whether he worked 40, 45 or 47 hours a week. When Brunozzi complained internally about the pay structure and what he believed was a violation of overtime law, he was fired.
Appealing a federal district court decision, NWJP is arguing -- with co-counsels David Schuck, Leslie Baze, and Phil Goldsmith -- that CCI cannot deprive workers of overtime wages through complex bonus calculations.
In addition, and perhaps with broader applicability, counsel is arguing that an internal complaint to a private employer should fall under the protection of Oregon’s whistleblower retaliation law.
The federal district court originally found that, while Mr. Brunozzi did report the overtime violation to his supervisors, it was not enough to invoke protections from retaliation. This interpretation could clearly take the teeth out of the statute and end up intimidating employees from making wage complaints.
We'll report the outcome of this case in future eNews so stay tuned!