All posts by Cynthia Carvajal

Are the Federal Courts TRUMPed?

For nearly sixty years the paradigm among public interest lawyers was to resort, after other forms of advocacy had been unsuccessful, to civil rights suits in federal district court and, if unsuccessful there, to appeal until one found success. While this strategy has had a relatively good run, its prospects may be waning due to changes in the federal judiciary brought about by prolific appointments by Donald Trump.

NWJP founder and senior staff attorney, Michael Dale, just released a paper called, “Are the Federal Court Trumped; Should I File my Public Interest Case in Oregon State Court?”.  The released paper explores using the state court system as an alternative means of judicially enforcing civil rights in Oregon. State courts have independent, unreviewable authority to interpret state civil rights and constitutional law, and ample reasons for asserting that independence.

The paper discusses a few examples of courageous decisions by state courts around the country. Specifically, in Rodriguez v. Dairy, 2016 N.M.S.C. 29, 378 P.3d 13 (N.M. 2016), the court held that the exclusion of farm and ranch workers from New Mexico’s workers’ compensation scheme violated the Equal Protection Clause of the New Mexico Constitution, even though it was likely that it would not have reached that result under the federal Equal Protection Clause. The Washington Supreme Court held that exemption of dairy workers from the state overtime law violated the privileges or immunities clause of Washington’s constitution in Martinez-Cuevas v. DeRuyter Bros. Dairy, Inc., 475 P.3d 164, 196 Wash.2d 506, 475 P.3d 164 (Wash. 2020), a result that was, again, unlikely under the federal Equal Protection Clause. Using purely state law theories, a Circuit Court in Oregon overturned a popular local ballot measure punishing employment of undocumented workers in Columbia County that had been modeled on an Arizona law which had been upheld on federal claims by the Ninth Circuit. After the United States Supreme Court had ruled in Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014), that time spent by Amazon workers waiting for security checks after their shifts were completed is not compensable time under the Fair Labor Standards, the Pennsylvania Supreme Court refused to follow that interpretation in construing Pennsylvania law in In Re Amazon.com, Inc., 255 255 A.3d 191-92 (Pa. 2021).

The balance of the paper discusses considerations for litigants in choosing to bring public interest cases in state courts:

  1. Oregon judges have largely been appointed by progressive governors for a generation.  Although state judges must run for reelection every six years, it is very rare that an incumbent judge is unseated by a challenger and even rarer for judges to be successfully challenged based upon particular past rulings from the bench. If a litigant in state court believes that an assigned judge cannot provide a fair trial, the party may challenge the judge by affidavit and the judge will routinely be replaced.
  2. Plaintiffs in Oregon state courts are uniquely positioned due to the striking contributions to Oregon’s jurisprudence of Justice Hans Linde. His decisions and academic writing bolster the independence and primacy of Oregon’s constitution. Linde established in Oregon law a preference for resolving mixed federal/state law cases on state constitutional grounds first, and if full relief is afforded under state law, declining to review federal law questions.  This offers an opportunity to avoid review by a hostile United States Supreme Court. Linde separated analysis of Oregon’s Privileges and Immunities clause from federal equal protection doctrine, argued against balancing individual rights against state interests and provided a basis to apply international human rights law as a guide in interpreting Oregon law.

  3. Oregon’s constitution is interpreted independently from similar, or even identical federal provisions. The paper discusses differences in free speech, rights of assembly, religious liberty, search and seizure, excessive punishment, equal privileges and immunities, and remedies clause.

  4. There is an Oregon statute that permits recovery of attorneys’ fees for prevailing plaintiffs in cases raising a wide range of discrimination claims, including common law claims. In some circumstances, Oregon courts also have equitable powers to award attorneys’ fees in the absence of statutory or contract provisions providing for fee-shifting.

  5. In many cases in state court parties have access to court-annexed arbitration. Advantages and disadvantages are discussed.

  6. Oregon’s rules about jury trials may make it easier and less expensive for plaintiffs to prevail.

  7. Parties or witnesses needing the assistance of an interpreter are entitled in the state courts to the appointment of a qualified interpreter paid by the state, but retain the right to choose their own qualified interpreter, and need only pay any excess in cost. To be qualified, and interpreter must be able to communicate using the language and register of the witness.

  8. Oregon state courts are courts of general jurisdiction, and many of the jurisdictional and justiciability issues that arise in federal courts will not be encountered in the state system.

 

 

NWJP’s Theory of Change

We focus our efforts in three main ways: outreach, rights enforcement, and policy advocacy – all working together to help build worker power.
(Click on each header for the full story)

Outreach:

It starts with our connections with communities of low-wage, contingent, and immigrant workers. Without those deep connections, we would not have the guidance we need for all of our work; we would not know what workers are struggling with.

We described our new project—the partnership with PCUN—an initiative to embed the provision of workers’ rights legal services into PCUN’s Latinx movement building efforts. Through this outreach, workers help us identify where to spend our efforts at enforcing workers’ rights.

Enforcement:

Two brave workers (now clients) were unjustly fired for trying to keep themselves and their coworkers healthy in the face of COVID.
That work around rights enforcement helps us understand in what ways our laws do not adequately protect our client communities from abuse or exploitation

Policy Advocacy:

We work with clients to bring policy proposals to the legislature or to regulatory agencies, like OSHA, to systematically improve protections for low wage and immigrant workers. In just the last year, we worked to win bold policy advances on workplace heat and smoke exposure that will have lasting affects as workers face more extreme climate events in the future.

But these important policy changes don’t happen in a vacuum – they come from our community outreach and our work to hold employers accountable. And once we secure a new victory, we go back to outreach to make sure workers know about the changes, leading to more enforcement and the next round of policy changes. With workers at the center of it all, we are truly helping to change the game.

BUT WE CAN'T DO IT WITHOUT YOUR SUPPORT!
It takes a great deal of time and resources to build those relationships to the community, to make sure that workers have access to justice, and to make meaningful change at the policy level.

So, we are asking you to make a meaningful year-end donation to support our work. Please go here to donate today, if you haven’t already! We especially encourage supporters to sign up for a monthly, tax-deductible contribution here. That’s a great way to support our work in an ongoing way. 

2021 Event Sponsorship

Sponsor NWJP's annual event to stand with us for dignity in the workplace!

2021 Celebration of Worker Justice

Tuesday, June 8th, 2021
5 p.m. to 6 p.m.
Online Event

Join us as an event sponsor today!

 

As an event sponsor, you will receive public acknowledgment (details below). You will also help NWJP to offer year-round support to Oregon's low-wage workers. Together, we will continue to protect workplace dignity and improve wages and working conditions.

Sponsorship  Level Amount Benefits
Friend of Fairness $250 Public acknowledgment on our website and social media
Champion of Change $500 Public acknowledgment on our website and social media         Special recognition during the event
Defender of Dignity $1,000 Public acknowledgment on our website and social media         Special recognition during the event
Guardian of Justice $2,500 Public acknowledgment on our website and social media         Special recognition during the event
Workplace Warrior $5,000 Public acknowledgment on our website and social media         Special recognition during the event
Ready to become an event sponsor? 

 Return this form via email, snail mail, or fax.

Questions?
Please contact Chris Ferlazzo, Program Administrator, by email at chris@nwjp.org or by phone at 503-525-8454 ext 12.

Thank you for standing with NWJP to advance worker justice!

NWJP Summer Volunteers/Clerks

Every quarter, NWJP hosts several law students and other volunteers who are committed to developing their knowledge and skills, and protecting workers’ rights. This past Spring, we were lucky to host 5 such students: Tre Dunn, Cosimo Gaudio, Rodrigo Narbona, Sarah Anderson and Sarah Osborn

Tre Dunn is a fourth-year undergraduate student at the University of Oregon currently double-majoring in Sociology and Spanish, with a minor in Legal Studies. Growing up in Portland within a low-income, minority, family led Tre to gain an understanding for the struggles that underrepresented communities face, and to develop a passion for combating social injustices no matter the form. Due to Tre’s equal interests in the law, the Spanish language, and fighting against social inequalities, volunteering at NWJP seemed to be the perfect fit and most rewarding experience. At NWJP, Tre works as a volunteer legal assistant, helping the staff with tasks such as data entry, contacting clients, and many other ventures. Other than being a full-time student and volunteering at NWJP Tre enjoys countless other activities, including rafting, camping, and attending events such as concerts or sports games.

Cosimo Gaudio is a current undergraduate student at the University of Miami from Portland, Oregon. He is set to graduate in 2020 with a B.A. in Economics and History, and will then enroll in University of Miami Law School. He believes that his time at NWJP has provided him valuable exposure to his future career.

Rodrigo Narbona grew up in Chile, but has been living in the States for about 16 years. He is currently a law student at Lewis and Clark Law School and a fairly recent transplant to the Pacific Northwest. Before law school, Rodrigo studied philosophy at Northern Illinois University, where he received both a Bachelor’s and a Master’s degree. Keenly aware of some of the hardships immigrants face, Rodrigo is very excited to work alongside (and learn from) people who are passionate about worker rights and giving voiceless people the tools to stand up for themselves.

Sarah Anderson is a rising 3L at the University of Oregon. Outside of law school, Sarah enjoys craft beer and delicious food, and has been providing our office with delicious lunches from the Stretch the Noodle food cart.

Sarah Osborn is a law student at the University of Oregon and wants to practice labor or employment law after she graduates. She is also a Master's student in conflict and dispute resolution (ADR). Before coming to law school, Sarah studied economics and worked as a consumer and small business banker. Sarah is from Canada and enjoys exploring the Oregon mountains with her partner, Alisa, and dogs, Eddie and Bean. Her favorite part of being at NWJP is working alongside staff that are just as passionate about social justice and equity in the workplace!

Danya (left) and Sarah (right) went to the 9th Circuit Court on July 11 to watch oral arguments in support of Dallas, Oregon's school district policies allowing transgender students to use public facilities that match their gender identity.  Oregonian story here

Private Agency Homecare Workers Win Workers’ Comp Clarification

In-home care is a dangerous profession for caregivers, requiring constant bending, twisting and lifting of consumers. NWJP has been partnering with SEIU 503 to reach private agency caregivers that are low-wage workers who are often isolated from other workers. There are more than 150 such agencies in Oregon, employing as many as 10,000 caregivers providing in-home support to seniors and people with disabilities to ensure they are able to live independently in their own homes. In an analysis of records provided by the Oregon Workers’ Compensation Division, SEIU 503 found more than 600 workers’ compensation claims from in-home caregivers. However, additional research revealed that nearly a dozen private homecare agencies did not appear to carry the workers’ compensation insurance required by the State of Oregon.

In response to a meeting with representatives from NWJP and SEIU Local 503, the Workers’ Compensation Division (WCD) clarified that private agencies employing homecare workers are not exempt from carrying workers’ compensation insurance. WCD issued both an Industry Notice and a Worker Fact Sheet about private agency caregiver rights.

“This is an important step forward for a workforce that’s largely women and people of color, who due to a legacy of racism and sexism have been left behind by our labor laws,” said Corinna Spencer-Scheurich, Deputy Director of NWJP.

Previously the Ombudsman for Injured Workers told homecare workers they had to sue their employer in court if they wanted any remedies for a workplace injury. This resulted from an incorrect interpretation of a domestic worker exemption in the statutes and regulations governing workers comp. With the WCD clarification, private agency homecare workers who are injured on the job will be able to file a claim, the insurance company will pay their medical costs and they will receive compensation for time that they miss work because of the injury. They do not have to sue their employer in court.

From Michael’s desk

ICE activities in and around Oregon’s courthouses continue to present barriers to access to the legal system by immigrant workers. ICE agents, often in plain clothes, continue to detain persons they suspect of being without documents on and around Oregon’s courthouses, disrupting court proceedings and spreading fear in the immigrant community of attending court proceedings. This practice is interfering with equal access to the justice system. Workers are avoiding appearing at court to attend hearings, access court services such as restraining orders, or assert civil claims.

In December, NWJP joined a number of other community organizations in petitioning Oregon Chief Justice Martha Walters to issue a trial court rule prohibiting civil arrests on courthouse grounds or when coming to, or leaving from, court hearings. Such an order would be based upon a traditional common law right that has been recognized by the Oregon Supreme Court and upon the 10th Amendment to the U.S. Constitution. Justice Walters met with petitioners and requested additional information about immigrant experience of ICE detention practices.

While she has not yet acted upon our petition, Chief Justice Walters has written to ICE to request a meeting to discuss this matter. Individuals who are concerned about this issue are encouraged to respectfully contact Justice Walters to share their experiences and concerns.

To help push this campaign forward, we are supporting an action on Monday at the Washington County Courthouse urging the Chief Justice to issue the order. Details here:
https://www.facebook.com/events/375583916435228/

NWJP’s Theory of Change

We focus our efforts in three main ways: outreach, rights enforcement, and policy advocacy – all working together to help build worker power.
(Click on each header for the full story)

Outreach:

 

It starts with our connections with communities of low-wage, contingent, and immigrant workers. Without those deep connections, we would not have the guidance we need for all of our work; we would not know what workers are struggling with.

We described our new project—the partnership with PCUN—an initiative to embed the provision of workers’ rights legal services into PCUN’s Latinx movement building efforts. Through this outreach, workers help us identify where to spend our efforts at enforcing workers’ rights.

Enforcement:

 

Two brave workers (now clients) were unjustly fired for trying to keep themselves and their coworkers healthy in the face of COVID.
That work around rights enforcement helps us understand in what ways our laws do not adequately protect our client communities from abuse or exploitation

Policy Advocacy:

 

We work with clients to bring policy proposals to the legislature or to regulatory agencies, like OSHA, to systematically improve protections for low wage and immigrant workers. In just the last year, we worked to win bold policy advances on workplace heat and smoke exposure that will have lasting affects as workers face more extreme climate events in the future.

But these important policy changes don’t happen in a vacuum – they come from our community outreach and our work to hold employers accountable. And once we secure a new victory, we go back to outreach to make sure workers know about the changes, leading to more enforcement and the next round of policy changes. With workers at the center of it all, we are truly helping to change the game.

BUT WE CAN'T DO IT WITHOUT YOUR SUPPORT!
It takes a great deal of time and resources to build those relationships to the community, to make sure that workers have access to justice, and to make meaningful change at the policy level.

So, we are asking you to make a meaningful year-end donation to support our work. Please go here to donate today, if you haven’t already! We especially encourage supporters to sign up for a monthly, tax-deductible contribution here. That’s a great way to support our work in an ongoing way. 

ICE Activities in and Around Courthouses

The immigrant rights community in Oregon has, for some time, been concerned with the enhanced tendency of ICE to engage in enforcement activities in and around courthouses. Questioning or detention of immigrants around the court severely undermines equal access to the law, since witnesses and litigants will be deterred from seeking justice in the courts if there is even the perception that these spaces are not safe.

In a welcome move, the Biden Customs and Border Patrol agency has released new guidance about ICE enforcement activities around the courts. The new policy expresses concern that ICE activity at courthouses may interfere with the administration of justice, and urges consideration of this ill effect. It does require that such actions be documented and reported. However, the policy is riddled with exceptions, and it does not say anywhere that ICE may not carry out enforcement activities at courthouses. It promises that the Secretary of Homeland Security will adopt further guidance. We urge the development of policy that truly restrains ICE from using courthouses as an arena for enforcement activity.

NWJP has worked with other concerned organizations to win adoption by the Oregon Supreme Court of a rule for Oregon courts prohibiting ICE enforcement in state courthouses in most circumstances. Then, in the last session of the legislature, HB 3265 was enacted, prohibiting the collection and sharing of certain immigration-related information, and flatly prohibiting warrantless immigration arrests on courthouse grounds. We hope that these state prohibitions will be incorporated in Homeland Security directives, and that ICE will honor them in practice.

Northwest Workers’ Justice Project Seeks a Bilingual Staff Attorney

PDF here: Staff Attorney Job Description 2021

The Northwest Workers’ Justice Project protects workplace dignity by supporting the efforts of low-wage, immigrant and contingent workers to improve wages and working conditions and to eliminate imbalances in power that lead to inequity. We offer high-quality, direct legal assistance to workers and their organizations; support organizing efforts; educate workers, their leaders and the public about workplace rights; advocate for better employment laws; and promote greater access to low-cost employment legal assistance. For more information about NWJP, visit www.nwjp.org.

Our office is in Portland, Oregon. We are currently transitioning back to working in the office, and would prefer that the successful candidate spend at least one day a week in the office. This is listed
as a full-time, 40-hour a week position, but FTE is also negotiable.

Position description:
NWJP seeks a bilingual Staff Attorney to provide employment-related legal assistance to low-wage, contingent and immigrant workers as a way of dismantling structural racism and inequities. The central focus of the position is client representation in the areas of wage-and-hour violations, workplace discrimination, workplace health and safety, and employer retaliation in Oregon. There will also be opportunities to engage in policy advocacy, outreach and education, and to support worker organizing. We are looking for an attorney committed to strategically using their legal training to build power for working people.
The position requires the ability to work well with colleagues and a variety of external partners including unions, civil and immigrants’ rights organizations, and community and advocacy groups.
Because NWJP neither seeks nor accepts funds from federal or state government in order to maintain independence, the attorney must be willing to engage in some development and fundraising activity.

Required qualifications:
• Ability to establish trusting relationships with low-income clients and cultural competence to address the legal needs of immigrant workers;
• Excellent communication, writing, and research skills;
• Ability to work independently and as a team player;
• Ability to think creatively, and willingness to implement  unconventional legal strategies;
• Experience working with diverse communities;
• Strong organizational skills;
• Demonstrated commitment to social justice, as well as a desire to disrupt existing systems of oppression; and
• Oregon bar accreditation, or ability and willingness to obtain  admission in Oregon as soon
as possible.

Preferred qualifications:
• Proficiency in spoken and written languages commonly used by low-wage and immigrant workers in Oregon. While the majority of our clients speak Spanish and Central/South American/Mexican indigenous languages, we welcome candidates who speak other
languages or come from other potential client communities.
• Demonstrated litigation skills.
• Experience in employment law.
• Demonstrated commitment to workers’ rights.

How to apply:
Review of applications and interviews will begin immediately and continue until position is filled.
Applicants are encouraged to apply as soon as possible.

Please send a cover letter, resume, writing sample and a list of three references to Corinna Spencer- Scheurich, Director, at  jobs@nwjp.org. Please include the posting you are applying for in the subject line.

NWJP strives to be an affirming, positive, diverse work environment and is an equal opportunity employer. We strongly encourage applicants who will contribute to our diversity and/or who come
from our client communities to apply.

Salary:
Flexible FTE with .8 FTE or more preferred. Salary is commensurate with salary paid by Oregon legal services programs, which depends on experience. As an example, a successful, bilingual candidate with 0-5 years of experience working full time would expect to make $64,850 to $72,350 a year, but applicants with more experience are encouraged to apply and would be paid according to experience.

NWJP offers a medical, vision and dental plan that is covered 100% for employees and offers a small contribution to child coverage. After 2 years of employment, NWJP has a bonus plan currently amounting to 4% of all payroll and distributed to staff based on FTE; employees are encouraged to contribute bonuses to an IRA  retirement plan. NWJP has a flexible work schedule, although this position will be asked to participate in meetings during regular office hours. NWJP provides paid vacation, sick days and holidays.

Thanks to Our Volunteers!

Trent Taylor, an experienced labor and employment attorney, served as a volunteer staff attorney during this summer from May to September.  Trent assisted NWJP by providing legal guidance and assistance to junior staff attorneys at NWP and by offering counsel and legal assistance to several clients of NWJP.  Trent served as co-counsel with other NWJP attorneys on several employment law cases, including race and gender discrimination cases, wage and hour cases, and human trafficking cases.

Trent has decided to relocate after accepting a new full-time position with Farmworker Justice, a nationally recognized non-profit organization based in Washington, D.C., which litigates cases and engages in policy advocacy on behalf of farmworkers in the United States.  Although Trent will no longer be serving as a volunteer for NWJP, he has committed to continuing his support of NWJP’s efforts by remaining as co-counsel on a human trafficking case based in Oregon and looks forward offering his support on future cases involving farmworkers in Oregon.  We are very grateful to have had Trent as a volunteer and will miss his sage advice, his great sense of humor and his dashingly good looks.

Colin Armfield

Originally from the small town of Augusta, Kansas. After graduating, I moved to Kansas City for college where I got involved with the local punk scene. After spending some years as a touring musician, I got involved in labor movements through some friends in Food Not Bombs. I spent some years organizing and protesting with Fight for Fifteen before deciding to go to law school to be more effective for the labor movement. Last year, my cat and I packed up everything and moved from Kansas City to Portland, where I now attend Lewis & Clark Law School.