All posts by Chris Ferlazzo

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.

NWJP Files Complaint against National Maintenance Contractors

Northwest Workers Justice Project and Radford & Keebaugh, LLC filed a complaint against National Maintenance Contractors, LLC, NMC Franchising, LLC (collectively, “NMC”) and Marsden Services, LLC (“Marsden”), on behalf of thirty-four janitorial workers in Oregon and Washington. These janitorial workers allege that NMC deliberately misclassified them to avoid its employer responsibilities, including having to pay them the federal or state minimum wage.

In their complaint, these NMC janitors allege that they were promised the “American dream.” They paid hefty initial franchise fees to work for NMC as “business owners” and were forced to sign lengthy franchise agreements, comprised of over 100 pages, entirely in English. These janitors, who are immigrants and spoke very little English, claim to be aware of the one-sided terms that heavily favored NMC before signing. Unable to comprehend the terms of agreements, they state that they relied on statements made by NMC about the terms.

As alleged in the complaint, once the plaintiffs in the lawsuit became “franchisees,” a very abusive employment relationship began. Unlike people in business for themselves, the janitors state instances when NMC forced them to take unprofitable accounts and often threatened to terminate their franchise agreement if they refused to abide by the work assigned. Making claims of trafficking, the janitors say that these threats kept the janitors in involuntary servitude and debt bondage, forced to work for little to no income.

By treating plaintiffs as franchisees, the suit exposes how NMC reaped all the benefits of having employees while not having to assume the responsibilities as their employer. For example, the janitors were forced to cover the costs of the commercial supplies and equipment that they needed to perform their jobs. They were also required to cover the cost of business insurance and enroll in workers’ compensation. Consequently, the plaintiffs found themselves earning far below federal, state, and local minimum wages.

This case demonstrates the insidious practice of selling janitorial franchises to low-wage employees, a particularly egregious type of misclassification.

Corinna Spencer-Scheurich: NWJP in Transition

On July 1st , I assumed the Director role at NWJP, after nearly 8 years of taking a turn at almost every other role at the organization. I am aware that I have big shoes to fill, those of founding Director Michael Dale. Michael conceived of and willed NWJP into being, with help from all of you, and through the force of his vision, skills, knowledge, and commitment.

I won’t pretend I have it all figured out in four months, and certainly not now when political and societal chaos challenges our understanding of the moment. But, at the same time, in some ways, NWJP’s organizational purpose has been made crystal clear by the successive crises, calling us to rise to the moment to seize opportunities in new and creative ways.

To start, the pandemic has stripped away most pretenses anyone had about the dangerous and unjust nature of low-wage and contingent work. Opportunities for progress are newly possible. For example, two years ago, we called together the Safe Jobs Oregon coalition to improve workplace health and safety enforcement for low-wage and immigrant workers. This work has not been easy. But now, the world has indelibly learned how America’s frontline workers, mostly low-wage workers and immigrants, have been unnecessarily exposed to disease and death, and have had to fight for basic protective equipment. Conversations are shifting in the direction of worker safety. Recently, we focused our efforts on pushing Oregon OSHA for a strong infectious disease standard and protections for migrant agricultural workers, and have made headway.

As another example, for NWJP’s entire history, we have litigated on behalf of employees misclassified as independent contractors, who we argued were not getting the benefit of basic employment protections. Few employers or policymakers felt inclined to address that status quo. Then, in one fell swoop, millions of independent contractors were given “pandemic unemployment assistance” by the federal government, thereby acknowledging that these workers also needed a safety net during COVID. Going forward, we should no longer have to make the case that misclassification profoundly hurts workers and the economy. Instead, our advocacy can focus more on solutions.

In addition, the central nature of racial justice in NWJP’s economic justice work has come into even sharper focus thanks to the heroic endurance of Black Lives Matter protestors in the wake of the deaths of George Floyd, Breonna Taylor, and so many more. We have always understood that racial justice is economic justice and that economic justice is racial justice. We directly address and strategize with our immigrant clients and their families about how to try to prevent the racial profiling that leads to immigration enforcement agencies being alerted to an unlawful presence. As we have watched explicit white nationalism blossom in some workplaces, we have used our expertise to help our clients beat it back.

But, this moment requires us to do more. We join the chorus of protesters when, for example, Black unemployment rises while white unemployment begins to fall. We push for changes when workplace outbreaks of COVID-19 in food processing and agriculture hit Latinx communities the hardest of any community in Oregon. We aim to be agents of anti-racist policy change in every space we are in. We are taking fresh looks at potential cases to question at what point the drip, drip, drip of racist language and conduct become enough to hold the employer responsible. Some legislators, judges and jurors have been changed by this antiracist moment, and, therefore, we must help workers and our allies push forward where there are opportunities for meaningful change.

Finally, the death of Supreme Court Justice Ruth Bader Ginsberg and the hypocritical rush to fill her seat on the Court has exposed the challenges we face in helping our clients meaningfully access justice in a system so easily manipulated by partisan politics and bias. We have long known that our legal system is marred by bias. We have trained ourselves and others on how best to pick a jury for a case on behalf of an immigrant or person of color. We have trained ourselves and others how to push to expand the remedies available for undocumented immigrants and to keep immigration status out of discovery and out of the court room when possible. But, now the federal courts, our preferred avenue for justice for our clients, face danger from ideological judicial appointees at all levels. We will see how the next decade of federal court decisions fall for our client communities, but we are already shifting our focus to litigating in state courts and to advocating for protections from state and local policy makers.

In spite of the severe challenges we face, the path forward also gives hope that the current suffering will birth new progress in building just and equitable workplaces. “A rising tide lifts all boats,” “trickle down,” and “color blind” have been exposed, hopefully once and for all, as hollow promises. Together, we can get down to making anti-racist changes in our workplaces, communities, states and country that 1) will allow low-wage, contingent and immigrant workers to build power in their workplaces for long-lasting and systematic change; 2) will develop a just system of protections and remedies for all workers; and 3) will expand enforcement of laws that results in meaningful remedies for workplace injustices. It will take work, but we at NWJP are up for that challenge.

One of my personal heroes is the political humorist and writer, Molly Ivins. Growing up in Texas and coming into political awareness during the Bush Administration, Molly gave voice to outrage and frustration, while poking fun at the stupidity of politics and the characters in charge. In her last column in 2007, written weeks before her death, Ivins urged readers to act against President Bush’s plans to send more troops to Iraq. Her words resonate to me now, replacing “war in Iraq” with “war against people of color/working people/immigrants.” She wrote, “We are the people who run this country. We are the deciders. And every single day, every single one of us needs to step outside and take some action to help stop this war. Raise hell.”

At NWJP, we promise we will.

Defending the Rights of Forestry Workers

Every year hundreds of immigrant workers are brought to Southern Oregon on temporary H-2B visas to work planting and felling trees in remote mountain sites in Oregon, Northern California, Utah and Idaho. Recruited primarily in Mexico, many of these workers also are required to help battle forest fires. Isolated far from community resources and dependent completely on their employer to meet their basic needs, many of these workers suffer egregious and systemic workplace abuses.  Because they spend most of their time in the mountains, and because, even when they come back to civilization, access to specialized legal help on employment cases is very limited in Jackson County, it is very challenging for them to find badly needed legal help.  As a result, the Medford area has gradually become the center in the Northwest for forestry worker abuse, and a key entry point for use of the exploitive H-2B temporary alien worker program.

Over the last few years, NWJP has been working with community promotoras in Southern Oregon to reach out to and to serve some of Oregon’s most vulnerable workers: immigrant forestry workers. Lay workers originally trained to connect tree planters to medical care, these promotoras have been provided training on basic employment rights, how to do a basic intake for NWJP’s lawyers, and their ethical responsibilities in participating in legal representation. By working together, we are able to provide some access to badly needed legal remedies.

For example, NWJP is currently fighting for the rights of a worker who was badly injured when forced to work with a chainsaw that had a broken safety guard. The saw kicked back, wounding his face and chest. He and his brother, who was psychologically traumatized from witnessing the injury and holding the wound to staunch the bleeding during the long drive to the hospital, were retaliated against and blacklisted from future H-2B jobs.

In another case, two Latinx workers working on a predominately Anglo crew were subjected to a range of discriminatory abuses based on their ethnicity and because they reported injury on the job.

In almost all of the forestry cases that NWJP handles, workers are subjected to serious wage theft. Workers are usually driven to a remote motel where they temporarily stay, often for weeks at a time. In the mornings, they load a truck with trees, fuel and gear, and drive, often for hours, to the forestry site. They carry seedling trees and tools on their backs and hike extended distances into the forest over rough terrain to begin their work. Only when they begin to plant the first tree does the clock start running and they start getting paid.

While regular commuting to work is not paid time under state and federal law, certainly the time carrying trees into the forest by foot is. And, we believe that much of the other travel time for these workers, away from home, must also be compensated.

NWJP has been partnering with the Northwest Forest Worker Center, and now part of the Lomakatsi Restoration Project, to find, maintain contact with, and represent workers both on their individual cases of discrimination and retaliation, but also to try address systemic wage theft in the industry.

NWJP Summer Clerks and Lawyers

NWJP could not function without our fabulous volunteers and law clerks.  Currently, we are grateful to have support from law clerks Nathaniel Belachew, Christina Sailler, Jessica Gutierrez, and Sarah Osborn.  We also have two lawyers assisting us right now: Kabita Parajuli and Trent Taylor.

This is a uniquely challenging time to be a law clerk or volunteer lawyer, but this team has adapted amazingly well, and has been a huge help.

Nathaniel Belachew (he/him/his)

Hi! My name is Nathaniel Belachew and I'm entering my third year at Willamette University College of Law. My primary interests while enrolled at law school have been employment law, immigration law, and constitutional law. My hobbies outside of law school include hiking, cooking, and going to concerts. I'm very excited to be a part of the Northwest Workers' Justice Project as a law clerk.

Christina Sailler (they/them/their)

Christina Sailler just completed their first year at the University of Oregon School of Law, and they are
excited to be back home in Portland, Oregon to join the team at NWJP.  Prior to law school, Christina worked in organized labor with the Oregon Nurses Association and they are looking forward to continuing to advocate workers' rights as a summer law clerk with NWJP.

Jessica Guttierez (she/her/hers)

I am a rising 3L at Lewis & Clark Law School. I was born and raised in Dallas, TX by immigrant parents. My experience as a child of immigrants has led me to focus on immigrant rights. I am excited to be part of NWJP for the summer because I know they are committed to providing legal support to immigrant communities facing discrimination.

 

 

Sarah Osborn (she/her/hers)

Sarah Osborn is a returning law clerk for NWJP and an incoming third-year student at Oregon Law. She is passionate about workers' rights and wants to practice plaintiff-side litigation after law school. In her education, she has been involved in promoting fair access to justice for LGBTQ individuals and taking coursework in civil rights, labor law, and alternative dispute resolution strategies. Her favorite things to do when she's not a law student are hiking with her two dogs and practicing yoga.

Kabita Parajuli (she/her/hers)

Kabita Parajuli moved to Portland from California, where she completed her law degree as a member of UCLA Law School's Epstein Program in Public Interest Law and Policy. She is a fellow at Jobs With Justice Portland and the Harvard Law School Clean Slate Program, an effort to reshape labor law. She is interested in the law as a way to support social movement work for racial and economic justice.

Trent Taylor (he/him/his)

Trent Taylor is a volunteer attorney who began volunteering as an attorney with NWJP last month.  Trent is a well experienced attorney with nearly ten years of litigation experience.  Over his career, he has concentrated his practice on representing low-income workers in wage and hour and employment discrimination litigation.  In addition, Trent has considerable experience in representing unions and their constituents in arbitrations and contract negotiations. He is licensed to practice in the states of Oregon, Ohio, Kentucky, Kansas and Missouri.  He has also appeared as counsel before the United States Court of Appeals for the D.C. and Sixth Circuits

Along his professional work, Trent has been active in organizing and contributing to different workers centers. While in Louisville, Kentucky, Trent co-founded Service Workers for Justice, an advocacy and resource group for restaurant employees. While in Columbus, Ohio, he co-founded and served as a board member for the Central Ohio Workers Center.  In recognition of these and other related efforts, Trent was named the 2019 Pro Bono Attorney of the Year by the Cincinnati Interfaith Workers Center. He is fluent in Spanish and highly proficient in Arabic.  In his free time, he enjoys listening to music and watching his hometown St. Louis Cardinals.

NWJP wins important court decision implementing new law in construction

A chronic problem in the construction industry in Oregon has been the use of “labor contractors” to recruit workers for tasks like roofing, framing, drywall and painting. These recruited workers are typically misclassified as employees of the labor recruiter, not the construction contractor. This allows the construction contractor to avoid liability for paying the wages of those workers who make their project possible. The labor recruiter often doesn’t have enough money to pay wages, and historically, it was extremely difficult to collect from the construction contractor.

A few years ago, working with our partners in the Oregon Coalition to Stop Wage Theft, our clients achieved a major improvement in the law when the legislature applied the Oregon Contractor Registration Act (OCRA) to the construction industry.  OCRA requires that construction contractors only use labor recruiters who are licensed by BOLI and have posted a bond to guarantee payment of wages. Under this law, it is the responsibility of the construction contractor to check licensing and only hire reputable subcontractors to recruit their work force.  If they don’t check the license, construction contractors are explicitly liable for any wages and statutory damages owed to the workers.

Most construction companies have seemed to be either unaware of OCRA or ignoring their obligations under it.

In March, NWJP clients won an important ruling in federal court on OCRA claims.  The case involved five roofers who were not paid for a number of weeks of work.  They had demanded their wages from the roofing company as well as from the unlicensed labor recruiter.  Neither entity was willing to pay the full amount of wages owed.  NWJP represented the workers to sue both the labor recruiter and the construction company to collect what they were owed.

Two years after the roofing work was performed, NWJP attorney Kate Suisman successfully argued that the roofing company had failed to find out if the labor recruiter it used was licensed.  In the first written opinion applying OCRA to the construction industry, Judge Michael Simon of the US District Court of Oregon found that the large roofing company was a joint employer of Plaintiffs, had used an unlicensed labor recruiter in violation of OCRA and was therefore liable to the workers for wages and penalty damages.  The ruling in this case shows that construction companies who use unlicensed labor recruiters can be held liable for workers’ wages and substantial penalty wages under OCRA.

In fighting their case, these workers hopefully have gotten the attention of the construction industry, and have established a precedent that will help many workers in the future.

From Michael’s Desk

What an overwhelming time we are living through.

COVID is, in itself, unprecedented in my lifetime. But, I want to talk about the relentlessness of police violence that recent events have so clearly underscored.

Of course, the crisis in the criminal justice system is profound, and demands a profound response from our civil society.  Without making light of the seriousness of what needs to be done to reform our policing system, this moment isn’t just about better police training, supervision or tactics. Nor is it only about holding four errant police officers accountable, setting up citizens review commissions or even about better accountability for all police agencies. These steps probably would help and should be undertaken.

But, the root of this issue is much, much more serious and intractable. What is it that permits a human being to slowly and methodically snuff out the very life’s breath from another human being, apparently not in anger, but nonchalantly, with a hand in one’s pocket? And how can that individual’s colleagues stand by and silently watch, not raising a single objection?

The answer, of course, must be the unreformed racism that allowed our country to be built on slavery, violence, fear and hatred. That racism that lets us see the other, because of difference from ourselves, as somehow inferior or exploitable. To see another’s life as being somehow less worthy of the dignity and respect we’d expect for ourselves.

That virus infects far more than the criminal justice system.

At NWJP, we see it every day in our work.

We see the nonchalant indifference of a Derek Chauvin in employers who are willing to steal the wages of vulnerable, marginalized workers, dehumanize them, treat them like disposable pieces of machinery, threatening or firing those who dare to speak up.  While this may not literally extinguish the very lives of those workers, still, in the draining away of hopes and dreams for a better life, no matter how hard one works, the joys of living just as surely die.  Too often, it is this same strain of racism, whether overt or implicit, that allows this to happen. And rather than step in, take risks and perhaps even pay a personal price to stop or remedy this abuse, other workers, supervisors, regulators, judges or jurors, too often choose to look away.  They may justify their silent complicity because they allow their differences from the “other” to deny the victims’ common shared humanity and legitimate entitlement to fair treatment.

It is time to end this stain.  Because of the other crises we face, it is a hard time to take this on. But it is time. Yes, time to adopt meaningful and effective criminal justice reform. But we cannot stop there.  We must do the hard work to confront the structural racism and implicit bias that prevent us from reaching our ideals in the work place and as a community.

It is past time.

NEW Videos on Workers’ Rights During the Pandemic

Northwest Workers' Justice Project has teamed up with our friends at Centro de Servicios para Campesinos and PCUN (Pineros y Campesinos Unidos del Noroeste) to help spread information on workers' rights during these uncertain times of the COVID-19 pandemic. These educational videos cover topics such as health and safety rules, Oregon and federal sick leave law, protections under new emergency sick leave and medical leave, and the expanded unemployment benefits enacted through the recently passed federal stimulus package.

El Proyecto de Justicia para Trabajadores del Noroeste ha juntado con nuestros amigos en el Centro de Servicios para Campesinos y PCUN para difundir información sobre los derechos de trabajadores durante esos tiempos inciertos de la pandemia de COVID-19. Esos videos cubren temas de las reglas de salud y seguridad, la ley del permiso de enfermedad federal y de Oregon, protecciones de emergencia del permiso de enfermedad y el permiso médico, y los beneficios de desempleo ampliados que fueron promulgados por el paquete de estímulo recién aprobado.

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Oregon’s Unions, Workers’ Rights Groups Demand Safe Return to Work Policies as Oregon Reopens

For Immediate Release: May 27, 2020

 Contact:

Kate Suisman

Northwest Workers’ Justice Project

646-942-6659 (cell)

kate@nwjp.org

 

Oregon’s Unions, Workers’ Rights Groups Demand Safe Return to Work Policies as Oregon Reopens

A coalition of groups sent a detailed letter yesterday to all members of the Oregon House, Senate and the Governor’s Office urging immediate action to protect workers as the state reopens.

The letter, which was written by Safe Jobs Oregon, a coalition of organized labor, community groups, legal organizations and others, demands four immediate policy changes to keep workers safe:

  1. Statewide, enforceable COVID-19 workplace standards
  2. A workers’ compensation workplace presumption for all workers with COVID-19.
  3. Additional whistleblower protections to protect workers’ ability to report hazardous conditions.
  4. A remedy of the deficiencies in Oregon’s unemployment insurance, sick and family leave laws.

 The attached letter was sent by Oregon AFL-CIO, Pineros y Campesinos Unidos del Noroeste (PCUN), Association of Western Pulp and Paper Workers, Portland Jobs with Justice, Voz Workers’ Rights Education Project, Lomakatsi Restoration Project, Northwest Workers’ Justice Project, Oregon Center for Public Policy, Safe Jobs Oregon, Causa and Service Employees International Union Locals 49 and 503.

 NWJP is a non-profit law firm that represents low-wage workers in employment matters and advocates for stronger, worker-centered policy changes on a local and national level.

Safe Return to Work letter May 2020

We Love Our Law Clerks and Volunteers!

NWJP could not function without our fabulous volunteers and law clerks.  Currently, we are grateful to have support from Alec Finnell, Jennifer Reeger, Lola Loustaunau, and Kabita Parajuli. Despite the fact that our office is mostly closed, these folks are still working away with ongoing litigation efforts and have been incredibly helpful. Thanks team!

Alec Finnell was born and raised in Bakersfield, CA, and earned his BA in German Studies and paralegal certificate at UC Irvine (including a formative year abroad at Humboldt University, Berlin). He and his partner moved to Portland in 2016, drawn to its unique political culture and readily available vegetarian cuisine. Alec was drawn to the legal field through his passion for workers rights and labor movements, and works full-time as a Practice Assistant at Stoll Berne.

 

Jennifer Reeger: I’m currently a 3L at University of Oregon School of Law in the Portland Program. I graduate in less than 75 days, but who’s counting?! I plan to use my degree to serve underprivileged communities in the Pacific Northwest. I came to law school after spending some time volunteering with an anti-trafficking organization in Seattle. Originally hailing from Texas, I sometimes wear cowboy boots, and I’d wage all my money (remember - I’ve been in law school for 3 years, and my experience mostly includes volunteering at non-profits) on the superiority of breakfast tacos over breakfast burritos.

NWJP has been a great opportunity to get out of the classroom and learn about labor and employment law in a more direct manner. The team is supportive and welcoming, and I’m trying to figure out how I can convince them all to stay friends with me when my externship ends. I’ve had a great experience with a variety of work; however, most of the cases I work on are wage claims or workers’ compensation retaliation.

Lola Loustaunau grew up in Argentina and completed her BA in Political Science at the University of Buenos Aires in 2011. She worked for Argentina's federal government as a public policy analyst before moving to the United States in 2015 to pursue a Ph.D. in Sociology at the University of Oregon. She worked as a research assistant for the Labor Education and Research Center at UO (2017-2019) and was a VP at Large for AFT-OR (2017-2019). Her current research focuses on working conditions among migrant women workers in the food sector, and their forms of individual and collective organization, particularly through legal claims.