All posts by Violeta Rubiani

December 2015: From Michael’s Desk

IMG_4506
Michael attends the 2016 Legislative Agenda Launch for the Fair Shot Coalition, which has included wage theft among its priorities. (Photo courtesy of Heather Stuart.)

We’re quite excited by the crackling energy around increasing the minimum wage.  We also are delighted that Fair Shot for All—an important coalition of labor and community organizations—has adopted wage theft as one of its three priorities for the 2016 session.

There is a very strong connection between wage theft and raising the minimum wage.  Our client community is struggling to recover from twenty years of declining real wages and the sluggish job recovery in the sectors in which our clients work.  Plus, the disintegration of permanent real jobs into smaller and smaller temp, part-time, contingent work—the “gig” economy—has made it more and more difficult to survive (see the accompanying piece about this). Meanwhile, the distribution of income in the country becomes more distorted.  Low wage Oregonians desperately need a raise.

But when we raise the wage we can only expect that we will see even more theft of wages from the most vulnerable workers. To make a higher wage real, we must give workers the power to claim what they’ve earned.  Providing effective tools to access the legal system or otherwise collect the full measure of wages the law requires has to be a part of what the legislature does, or the promise of a decent minimum wage rate will be a cruel illusion. We’re excited to be finding new energy and partnerships to work on this indispensable part of a fair agenda for 2016.

If you can help out with winning these advances, let us hear from you at coalition@nwjp.org.

Wishing you a safe, warm, and happy holidays,

DMD
Michael Dale
Founder, Executive Director and Senior Attorney, NWJP

The Gig is Up: Lawsuits Challenge Misclassification of Workers

by Linda Stewart, NWJP Volunteer
Photo by Farhan Amoor (freeimages.com)

With 50 million people, an estimated third of U.S. workers, identifying as something other than full-time employees, a significant number of the work force will feel the impact of recent lawsuits against “gig economy” employers who are cutting costs by hiring most of their workers as paid “per gig” independent contractors rather than full-time employees.

These start-ups have found a niche in the marketplace by providing platforms (i.e. apps) that connect consumers with services (rides, cleaning, deliveries, and event standing in line to wait for highly valued tickets or a new iPhone), that can be performed by anyone willing to be at the beck and call of others. But on-demand companies aren’t just inventing a new business model where they can control their employees with extensive detailed instructions, incentives, and rankings based on monitored performance; the new model also allows them to take a hands-off approach to taxes and benefits. Furthermore, if gig economy workers want to ask for more, they do not have the legal protection to unionize as regular employees do.

In a bid to win more rights for gig economy workers, Massachusetts-based labor attorney Shannon Liss-Riordan is alleging the misclassification of employees by on-demand companies in 11 separate complaints against Uber, Lyft, Washio, Homejoy, Handy, Instacart, Postmates, Shyp, DoorDash, GrubHub, and Caviar. The idea of misclassification is key to Liss-Riordan’s argument in each lawsuit because it is this manipulation that allows gig employers to skip the obligations—social security, unemployment, workers compensation, payroll taxes, and health insurance, not to mention paid time off—that come with hiring traditional full-time employees.

Catering to the post-recession entrepreneurial spirit, the so-called 1099 companies (a reference to the 1099 tax form independent contractors receive from those they contract with) are technology-based, owning few assets and hiring few full-time employees.  Probably the best known of these companies, Uber, has emerged preeminent in 2015, increasing in value by $36 billion in just one year to an estimated $50 billion.  After just six years in business, Uber is worth more than another familiar technology-based success was at the same point in time—Facebook.

Uber attracts drivers who appreciate the flexibility, the promise of high starting wages, and the availability of work in a competitive hiring environment. Some use their Uber gig as a supplement to other jobs. But when workers sign up with companies like Uber, they discover hidden costs. Since Uber doesn’t take out money for taxes, drivers must set aside the money themselves.  Drivers also pay for their own car insurance policies, and need to upgrade that policy from personal to commercial.  Another expense is wear and tear on the driver’s car.  One driver profiled by The Seattle Times estimates that his final earnings average about $3/hour once he subtracts the necessary costs.  Drivers accept these additional costs like independent contractors, yet they must abide by Uber’s policies, such as the one against accepting tips as though they are employees.

Uber drivers could be making a good wage if not burdened by costs previously borne by employers. University of Massachusetts economics professor Gerald Friedman suggests that “the rise of gig labor calls for new initiatives in social policy because it shifts more of the burden of economic risk onto workers even while removing gig workers from many of the employment-bound New-Deal-era social insurance programs.”  Lawsuits against on-demand companies are one of the few effective ways that gig workers can protest this shift since they are not represented by unions.  It’s difficult for gig workers to organize because they likely do not know each other and don’t occupy the same physical space as office and factory workers do. As things stand, gig workers are in a category apart from “employee” and “independent contractor” with none of the full benefits of either of these traditional classifications.

So what new social policies may be on the horizon? One of the most basic is representation. In an effort to improve conditions for Uber and other drivers in Seattle, the City of Seattle is considering legislation that will allow a non-profit organization to represent qualifying drivers as they bargain over pay and working conditions. Such representation could protect workers who ask for improvements. Illustrating the difficulty individuals have speaking out against a 50 billion dollar technology company like Uber, the Uber driver of the $3/hour profit profiled by The Seattle Times actually lost access to his Uber app after he voiced complaints during a press conference.

Another organization supporting Uber drivers and other gig economy workers is the National Employment Law Project (NELP) which is proposing that even 1099 workers be afforded minimum wage, social security, state workers’ compensation, unemployment insurance funds, and the right to organize.

Pushback against powerful gig employers has recently achieved some measure of success. A September 2015 challenge to the on-demand economy was given the green light when a California Court allowed a class-action lawsuit against Uber to go forward; Uber argued unsuccessfully that their drivers should not be treated as one class because drivers have such varied relationships with the company.  The court, however, will allow four named drivers to stand in for the 160,000 behind the lawsuit.

In Oregon, Labor Commissioner Brad Avakian issued an advisory opinion last October concluding that drivers in transportation networks such as Uber and Lyft are considered employees, not independent contractors. While the opinion has been called premature (no cases have been brought forth to test the opinion yet), Avakian has made it clear that the six factors under the economic realities test "illustrate how Uber drivers are not operating their own separate businesses with the degree of autonomy one expects with an independent contractor. To the contrary, [the actions of the drivers under their labor agreement with Uber] are all characteristic of an employment relationship."

Interestingly, in response to legal action, on-demand companies Shyp and Instacart have decided to switch some or all of their contractors over to employee status voluntarily. Cleaning service Handy, which faces two lawsuits with core issues similar to the one against Uber, has already scaled back what they demand of their cleaners in a bid to clarify their workers’ status as independent contractors, allowing more freedom in scheduling jobs and methods of cleaning. And Managed by Q, an on-demand cleaning and maintenance start-up, has hired all of its employees as W2, not 1099 from the onset because they “really wanted to reward performance, to train and nurture people.”

But gestures like Handy’s may not go far enough. “I cringe because I’ve heard a number of commentators suggest there maybe should be a third way, maybe not everyone is either an employee or independent contractor,” says attorney Liss-Riordan, discussing the suit against Uber with the Boston Globe. “Essentially that kind of discussion is about letting companies like Uber, at latest count a $50 billion company, off the hook for ensuring labor protections for its workforce. Why do we as a society want to let companies like that off the hook? For better or for worse, we made a decision many decades ago that companies have an obligation to make sure workers have certain minimal protections: minimum wage, overtime, workers’ comp, unemployment.”  The outcome of the class action lawsuit against Uber, which may take years to resolve, is sure to be influential as similar technology companies and their masses of independent contractors are watching closely to see if those minimal protections will apply to gig workers. In the meantime, we’ll continue to support unions, fight for worker protections, and stand with misclassified workers.


Linda Stewart is a Portland-based writer. She started volunteering for NWJP in 2015.She can be reached at lindastewart3545@gmail.com.

Inside NWJP: Meet Shannon Garcia, future attorney-at-law

Shannon
Photo courtesy of Shannon Garcia

Have you ever read The Awkward Yeti? It's an online comic strip featuring Heart (a carefree, magic-loving dreamer) and Brain (a logical, reality-embracing cynic). Hosting Shannon Garcia, a Lewis & Clark Law School student who clerked with us for a year and a half, was like having our very own Heart in the office.

Shannon is passionate and enthusiastic about making a difference in people’s lives through her legal work. As legal extern and volunteer, she’s participated in all aspects of wage-and-hour and discrimination cases, investigated claims, drafted federal complaints, researched obscure areas of the law, and participated in trial preparation. She also kept us thoroughly entertained with her sunny disposition and amazing sense of humor.

Image captured from www.theawkwardyeti.com
Image captured from www.theawkwardyeti.com

Shannon believes that the work she has done while at NWJP has positively impacted low-income communities and has helped her to remain focused on the altruistic reasons that propelled her to pursue a legal career in the first place.

This month, Shannon is graduating from law school with a Global Law certificate and she hopes to continue working with communities in Oregon that are experiencing poverty. Regardless of what her future holds, we know one thing is certain: she will continue being the Heart wherever she goes.

Go forth and do justice, Shannon!

Case of the Month: two painters struggle to recover back pay

by Bonnie Allen-Sailer, NWJP Staff Attorney
Photo by Antonio Jimenez Alonso (freeimages.com)

Fernando’s story is a common one these days: working as a painter for the same company off and on for over 10 years, he kept long hours, and racked 60-70 hours of work each week. His day normally started at 6 a.m., when he arrived at the boss’s shop to load materials and equipment before heading out to the jobsite for the day. He’d then put in 10-11 hours of physically demanding work, cleaned up at the end, and headed back to the shop to drop off the company’s vehicle and materials. His boss, however, only paid him straight time – no overtime – for the hours he painted and, contrary to state law, nothing at all for the time spent loading and unloading the truck and traveling between the shop and jobsites.

As if that weren’t bad enough, in May 2014 the company fired Fernando with no warning and no explanation, which was not illegal per se, but certainly confusing and frustrating after Fernando gave 10 years to a company he thought cared about him. Betrayed and upset, Fernando felt he was undervalued and disrespected. Along with Juan, a co-worker who had experienced similar pay abuses in his three months at the company, Fernando decided to fight.

When NWJP contacted the company on behalf of Fernando and Juan, it was dismissive at first, arguing the workers had agreed to not be paid overtime. Based on our clients’ testimony, we knew that not to be true. But even if it were, the law does not allow workers to waive their right to overtime. So our clients kept fighting.

This past October, a year and five months after Fernando was terminated, we were able to negotiate a settlement of $42,000 for him and Juan for back pay for the past three years (the maximum time period the law would allow). Not only were Fernando and Juan brave enough to fight the company for their hard-earned pay, but also courageous in rejecting the company’s request for a confidentiality clause in the settlement agreement, making it clear that workers have the right to know and enforce their rights without restraint and the company should not be able to hide their wrongdoing.

In November, the company made the final of a series of payments to Fernando and Juan for the overtime and off-the-clock wages they were owed. The attorney’s fees we received in the case will be used to help empower other workers like Fernando and Juan so that they can stand up for, and enforce their employment rights.

2015 Annual Celebration of Worker Justice is a huge success!

by Violeta Rubiani, NWJP Program Administrator
Photo by Paloma Dale, NWJP Volunteer

On Thursday, October 1 at 5:30 p.m., nearly 150 people crammed into Buchan Hall at the Eliot Center to eat good food, visit with colleagues and friends, have a glass (or two) of wine, and commune with fellow low-wage worker advocates. We expected that. We also expected a few donations and silent auction bids, and for everyone to have a good time listening to the inspiring presentation by Rebecca Smith, Deputy Director of NELP, about workers in the new “gig” economy, and the heart-felt speech by the Urban League of Portland’s President and CEO, Nkenge Harmon Johnson, about obtaining justice for those re-entering the labor market after serving time.

What we didn’t expect at all was to run out of food, sell nearly all of our auction items, receive a record number of donations, or receive a $10,000 donation from the Doug Swanson Memorial Fund that will allow us to launch our long-awaited Injured Workers Project. But we did, and we exceeded our fundraising goal for the night! We owe it all to you, the phenomenally committed folks who have been supporting us for the past 12 years.

We believe our work is important; we see it in the faces of the clients we help every day. To experience the love and support of a huge number of Oregonians who feel the same way we do is beyond touching.

So THANK YOU to all our partners, allies, friends, family, volunteers, staff members, boards, clients, and funders; your generosity, and your commitment and dedication to worker justice are truly inspiring.

 

P.S. Check out the short video we showed at the event. And don't forget to take a peek at the event's pictures on Facebook!

Capture

 

November 2015: From Michael’s Desk

Dear friends,

The last couple of months have kept us intensely busy: we pulled off an incredibly successful Third Annual Event, we packed our office and moved down nine floors to our new space on our building's second floor, and we’ve been diligently working on this, the first issue of what will be our new monthly eNewsletter.

Because we know your time is valuable, we want to keep our eNews short and sweet, so each issue will feature a piece about trends in our ongoing struggles for workers’ rights; a highlight of a current case or project; and a fun, inside look at NWJP’s work, our staff, partners, clients, and volunteers. We’d love to hear from you, too! Send us your feedback, comments, and ideas about the new format at news@nwjp.org.

This month, we were also honored to receive $10,000 from the Doug Swanson Memorial Fund to kick off our new Injured Workers Project, whose ultimate goal is to address the structural problems that currently stand in the way of on-the-job injury prevention, occupational safety education and training for workers, access to qualified and low-cost workers’ comp legal help, and adequate compensation for workers’ injuries.

As we enter the holiday season, we’re also spending time reflecting about our successes, the challenges and opportunities that lie ahead, and the role we will play as the labor landscape shifts along with technology. Most importantly, we are focusing on our blessings: our amazing staff members who work tirelessly to support low-wage, immigrant, and contingent workers in their quest to stand up for their own rights; our volunteers, partners and supporters, whose commitment, dedication, and hard work on behalf of workers is most inspiring; and our funders, without whom we would not exist.

Hope the beginning of Fall finds you safe and warm.

In partnership,

DMD
Michael Dale
Founder, Executive Director and Senior Attorney, NWJP

 

Photo of Michael courtesy of Doug Yarrow

Inside NWJP: Meet Marcus Swift

by Marcus Swift, NWJP Staff Attorney

Marcus Swift
Photo courtesy of Marcus Swift

“Whirlwind” is the word I use to describe my first nine weeks as the newest staff attorney at Northwest Workers’ Justice Project.

I stepped into our office on the 11th floor in downtown Portland in late-August for my first day of work.  I did so as a brand new lawyer ready to finally practice law.  As a law student I had the privilege of working at a legal aid office, a public defender’s office, DACA workshops, and an immigration clinic. I interviewed clients, filed motions, and appeared in court. It was valuable practical experience, but it does not compare to raising your right hand and swearing an oath to the Constitution and becoming a member of the bar.

I arrived at NWJP a week before law clerks started the fall semester, five weeks before our annual event, and six weeks before our entire office moved nine floors below. So, in other words, there was a lot going on.

In that short time, I’ve sent my first demand letter to an employer. I’ve interviewed potential clients. I’ve attended our annual event where generous people donated, laughed, ate, drank, and listened to great speakers. I’ve drafted a federal complaint. I’ve learned from other lawyers in Portland and across the country about topics like collections and properly drafted pleadings. I’ve counted on clerks for great research. I’ve turned to coworkers and supervisors for advice. I’ve lobbied lawmakers to raise the minimum wage. I’ve participated in meetings to discuss strategies to combat wage theft. I’ve carried boxes and moved furniture. And I’ve become part of an amazing team, all in only two months.

What I have seen at NWJP is a staff full of friendly, passionate, hard working people who do an incredible amount of work with limited time and resources. I have witnessed an organization that does so much important work in so many areas, and does so with an efficiency and effectiveness that I have rarely witnessed at larger organizations. And it’s all done without any state or federal funding.

I have also met (and been honored to represent) dedicated, courageous, hard working clients who want to care for their families, participate in their community, and be treated with the same dignity and respect that is afforded to others; people who want a fair day’s wages for a fair day’s work; people who believe that employers should follow the rules.

It’s been a whirlwind, to be sure. It’s also been incredibly enriching, rewarding, and exciting. And I know the newness will wear off and some of the rose coloring will fade out of my glasses. There will be rough days and frustrating losses. The justice system will not always seem so just. But I have no doubt that NWJP will still be doing so much, for so many, with so little. And I will be proud to be a small part of it.

NWJP and allies win changes for U.S. and temporary foreign workers

by Corinna Spencer-Scheurich, NWJP Deputy Director
Photo by Violeta Rubiani

Since its founding 12 years ago, NWJP has worked extensively with allied legal rights organizations around the country to improve protections for foreign workers who enter the country with temporary visas, and for U.S. workers displaced by the insidious practice of employers using these temporary foreign workers as a cheaper, disposable alternative to U.S. workers.

The H-2 Visa programs were originally instituted to aid companies that were having a difficult time finding workers. It is currently used by companies looking for unskilled laborers to work in forestry, seafood processing, seasonal fairs and carnivals, hotel housekeeping, landscaping, tree nurseries, agriculture, and construction, among other low-wage jobs. When companies can’t find enough workers in the U.S. to fulfill their temporary labor-force needs, they ask the Department of Labor (DOL) to certify their need for workers, and the Bureau of Citizenship and Immigration Services (USCIS) to issue H-2 visas to foreign workers, who are then allowed to enter the country legally to work. Because these visas are temporary and allow the bearer to work only for the employer who applied for the visa, workers find themselves isolated, fearful of losing their jobs, and are often subjected to abuse and exploitation.

The foreign worker programs also allows employers to unlawfully use foreign labor recruitment to avoid hiring U.S. workers, who tend to demand higher wages and are more likely to enforce their workplace rights. In contrast, foreign workers don’t know whether they have rights or where to go for help enforcing them, and often fear deportation, prison, blacklisting, or worse if they speak up.

After seven years of advocacy and legal battles, NWJP and its allies have scored major improvements in the DOL regulations that control the wages that employers must advertise and offer to U.S. workers before they seek foreign workers, who also must be paid the advertised amount.  Under the new regulations, U.S. workers are more likely to know about available work, and the way in which H-2B workers are recruited and hired is less likely to result in their exploitation and isolation.

Prevailing Wage

First, under President Bush, DOL passed regulations that substantially lowered the prevailing wages for H-2B jobs. This led to U.S. workers no longer being offered wages commensurate with average U.S. wages. As a result, U.S. workers either had to accept below-market wages or forgo the job. When U.S. workers passed up low-paying jobs to look for those that paid closer to their market value, the employer then filled the positions that “Americans didn’t want” with foreign workers.

After four lawsuits and a number of well-reasoned and extensive sets of comments to DOL, NWJP and its allies successfully convinced the agency to change the method it used to calculate wages. Now, the prevailing wage employers must offer to U.S. workers before being allowed to use the visa program to hire foreign workers is, on average, $2.12/hr more than the Bush method would allow. And if employers still cannot recruit U.S. workers, H-2B workers hired to do the advertised job also receive the higher prevailing wage.

Recruitment of U.S. Workers

Previously, an employer that didn’t want to hire U.S. workers could pretend to go through the motions of recruiting in the U.S., say he "tried to hire U.S. workers" in order to obtain the OK from DOL, and when U.S. workers didn’t come forth, he could hire H-2B workers.  Under the new regulations, the required recruitment of U.S. workers is much more robust, increasing the chance that U.S. workers will learn about job opportunities they would want to accept.

Worker Dependency

The new DOL regulations will help H-2B visa workers avoid some of the exploitation that occurs due to the fact that H-2B workers’ livelihood and presence in the country is completely dependent on one employer.

Specifically, the new regulations will address the following issues:

  • Job Contracts. Employers must provide a copy of the DOL-approved job order (which has the wage rate and other important employment terms) to each H–2B worker in a language the worker understands. Workers often rely on oral promises about the pay and work conditions in deciding to accept jobs in the U.S. or do not end up getting what the employers promised to DOL.
  • Prohibition on Recruitment Fees. In their contracts with international labor recruiters, employers must specifically prohibit recruiters from charging fees to employees. This will help prevent workers from going into debt just to get a job.
  • Three-Fourths Guarantee. To prevent over-recruitment of workers, employers will be required to pay them at least three-quarters of the hours promised in the work contracts. In the past, workers have been brought to the U.S. and then given little or no work, while paying high costs for housing and food.
  • Prohibition on Retaliation. H–2B employers are prohibited from retaliating against workers for filing complaints, consulting with workers’ centers or lawyers, and exercising any rights or protection to which they are entitled.
  • Reimbursements for Visa and Transportation Fees. Employers must pay or reimburse workers for inbound travel expenses after a worker completes 50 percent of the employment contract. Employers must also cover outbound travel expenses for migrants who work until the end of the job order or who are dismissed before the end of the job order.

These are hard-fought and hard-earned improvements, and NWJP is still engaged in litigation to try to close loopholes that still exist in the regulations. Overall, however, the new regulations are a major improvement in a visa program that has historically been abused by many employers.

In addition, we are pleased to have achieved these results through a successful and sustained national collaboration with other small organizations that work to achieve justice in the workplace.

Where does it hurt? If you’re one of Oregon’s injured workers, everywhere

by Violeta Rubiani, NWJP Program Administrator
Photo by Violeta Rubiani

If you got hurt at work today, would you know what your workers' comp rights are or what you’re supposed to do to file a claim?

If you answered no to that question, you’re not unlike the more than 20,000* Oregon workers who find themselves in that very spot each year. Hurt, scared and staring  at real and  long-term financial threats, many workers also face retaliation for reporting injuries, are shamed by employers and shunned by co-workers, or are steered to employer-friendly health practitioners who may not have the workers’ best interest at heart.

Even when a claim is accepted, an injury can disrupt a worker’s life in many ways: the worker may be required to attend time-consuming medical appointments and evaluations; she may not receive her full salary while on temporary partial or total disability (TPD or TTD in workers’ comp lingo); or a worker who is undocumented may face termination and may not be entitled to full compensation if his injury is permanently disabling.

For years now, NWJP has borne witness to the ways in which the workers’ compensation system fails the most vulnerable workers in Oregon – immigrants, non-English speakers, and contingent and low-wage workers.

That’s why this year, with $10,000 in seed funding from the Doug Swanson Memorial Fund (named after dedicated workers’ comp leader, Douglas A. Swanson), NWJP is launching the Injured Workers’ Project after many months of investigation, preparation and planning.

The project will be based in the Willamette Valley, and will have four key components:

  • In collaboration with the Oregon AFL-CIO, NWJP will organize a Coalition (or Committee) for Occupational Safety and Health (known as COSH) to advocate for enhanced occupational health and safety standards and procedures, particularly those affecting low-wage, immigrant and contingent workers;
  • NWJP will develop a pilot program to measure whether culturally appropriate job safety training conducted by low-wage, immigrant and contingent workers to their peers is effective in reducing on-the-job injuries among these workers. The pilot will likely start out in agriculture and construction.
  • NWJP will offer Know-Your-Rights training to workers in the areas of workers’ compensation benefits and procedures for accessing and navigating the system;
  • NWJP will conduct an in-depth assessment of Oregon’s workers’ compensation system and why it’s currently failing immigrant and contingent workers, and propose solutions that will ensure all workers have access to the system and receive the benefits they deserve and to which they are entitled.

At NWJP, we are beyond excited about this project and are looking forward to joining forces with community partners, unions, and workers to address the many inequities keeping low-wage, contingent, and immigrant workers in physical and financial pain.

* Source: Dept. of Consumer & Business Services