Category Archives: Michael’s Desk

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:

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.


From Michael’s desk

¡Ponte trucho! No Match Letters are On the Way Once again

Photo by Doug Yarrow. Michael explains pending Wage Theft legislation in our 2015 advocacy day.

Veterans of the struggle to support immigrants living in this country will remember the problems that arose from “no match” letters in the last decade.  A “no match” letter is a notification to an employer that the social security number the employer is using to report wages for an employee does not match the employee’s name in SSA’s data base. This can come about for a number of reasons, including change of name after marriage, misspelling or transposition of numbers in the employer’s records, or use of an incorrect number.  The receipt of a no-match letter does not indicate anything about the worker’s status, and does not require the employer to terminate the employee.  Because of problems in administering this system, the practice of sending out no-match letters ended more than ten years ago.

In July 2018 the Trump Social Security Administration (SSA) announced that, beginning in the spring of 2019, it will send no-match letters to every employer that has at least one Social Security “no-match.” The stated purpose of these letters is to assure that workers affected will be able to claim the social security benefits attributable to these wages. However, the transparent purpose in taking this action is to make life as miserable as possible for immigrants living in the US.

We can do some things to prepare. Above all, workers need to know that, once they have initially verified their eligibility to work, details about their immigration status are private and should not be discussed with others, including employers. Even with ICE, they have the right to remain silent. Employee representatives can negotiate with employers about how these letters will be handled.  For more information about how to respond see NILC's FAQ page.

From Michael’s Desk:

So I’ve been asking myself about the implications the appointment of Brett Kavanaugh to the U.S. Supreme Court may have for our work at NWJP and for our allies.

While one can desperately hope that Kavanaugh may come to the Court chastened by his experience, and that he and others, like John Roberts, may feel the need to move slowly at first, for the sake of the Court’s credibility, this is most likely just whistling past the graveyard.  Sooner or later—and more likely sooner—we should expect a gale force storm blowing directly into our faces on federal issues, including employment and immigration, specifically, but also on related issues such as civil rights, access to the courts, and other social and political rights.

How do we continue to press forward into this wind?

A piece of the answer is suggested by a sailing metaphor.  At times, it might be possible to tack into the wind, that is, to use the force of the wind in one’s face to be able to zig zag in a forward direction. If we can figure out how to use the new court’s ideology to gain ground, this may be appropriate. (E.g., can we use the court’s antipathy to federal regulation of the states to protect worker-protective statutes from federal review?) And if the wind becomes overwhelming we may need at least temporarily to trim our sails and ride out the storm, hopefully with minimal damage.  The trick will be having the wisdom to match these tactics to a given situation, without abandoning our most vulnerable clients and our zeal for justice.

The elections of 2018 and 2020 may set up new federal opportunities for legislation, and we might rethink the possibilities of effective administrative enforcement.

But I think that our principal response needs to be to re-envision how we approach our work.

For almost sixty years, a workers’ lawyer’s task has largely involved bringing social justice arguments before a federal court.  This era may be waning.  In Oregon, however, we are blessed, even in remote parts of the state, with a judiciary that has very largely been appointed by progressive, democratic governors.  Rather than seeking to avoid state courts, we must learn to embrace them. And we should structure litigation to avoid federal review, if possible. A corollary is that we must focus even more intensely on making sure that local labor standards are as good as, or better than, we’ve come to expect from federal law.

And of course, helping our clients find means to resolve disputes through their own self-advocacy and collective power outside of the court system becomes even more important than ever.

The way forward will be difficult and challenging. It will require us, as worker advocates, to grow and adapt in ways that push us out of our comfort zone. This is a challenge we cannot avoid, and must master.

From Michael’s Desk

As you probably know, Measure 105 to repeal Oregon’s “sanctuary” law has qualified to appear on the ballot this fall.

I put “sanctuary” in quotes because the long-standing Oregon statute that is being challenged by the ballot measure does not establish Oregon as a sanctuary at all.  It just directs that state and local law enforcement resources be dedicated to enforcing our criminal laws, and not squandered on chasing farm workers, landscapers and care givers whose sole offense is that they entered the country without documents or overstayed a visa.

I was a practicing attorney in Oregon before ORS 181A.820 was adopted, and I remember local police jurisdictions tying up multiple officers for many hours at a time in order to set up road blocks on busy roads to stop every motorist so that INS (ICE’s predecessor agency) could check the documents of everyone passing.  Those roadblocks were not only the source of annoying traffic jams, they were very reminiscent of old movies of Nazi Germany:  “Show me your papers.” This indignity is not the hallmark of a free and open society.

I particularly recall a young migrant worker who came to me for help during those times. He’d scraped together enough money to buy a car, and he’d picked up a hitch-hiker for whom he felt sorry  (having, himself, been in the same situation often enough).  Unfortunately, this hitch-hiker robbed him at knife-point, taking his money, his ID, his car and his shoes, and leaving him stranded on the side of the road.  After he walked about eight miles into town, he went to the local police to report this crime.

At the police department, he was arrested, and taken to jail as a “suspected illegal.” When he finally won his release about a week later, he’d not only lost his job, but we learned that no investigation of the robbery had occurred, and, indeed, his car had not even been reported as stolen.

These kinds of incidents are toxic to the trust most law enforcement leaders say is essential to good community policing. If undocumented workers—or even folks with legal status who might be wrongly profiled as undocumented—fear that interaction with police may risk their own arrest, they will not report crimes and they won’t cooperate with police as sources of information or testimony. This is why so many law enforcement leaders oppose Measure 105.

The English word “outlaw” comes from a time in ancient England when the king would declare that certain individuals were beyond the protection of the law.  These individuals were left to protect themselves and their families in any way they could, or tolerate being victimized.  The inevitable exploitation and violence not only affected them, but generally degraded the quality of life of everyone in the community.

ORS 181A.820 has, for thirty years prevented the legal creation of this type of outlaw class in Oregon communities.  But have no doubt that we’d quickly return to the “bad old days” that preceded its adoption, if Ballot measure 105 repeals it.

All of us who care about justice must stand up to the right-wing white supremacists who are pushing this benighted measure. We must get the facts, pledge to reject this measure, and get involved with others in the community working against it. (see

We must vote NO on Measure 105.

From Michael’s Desk

Huge congratulations rightly go out to the members of the Burgerville Workers’ Union for winning NLRB elections at two Burgerville locations, and in the process, becoming part of the first union in history to be certified as an official collective bargaining representative in a fast food establishment.

Michael with Michelle and Mark form the Burgerville Workers Union

But those of us who cheer these workers on must understand.  We may only be at the very first step of a long struggle to win a union to stand behind these brave, determined workers.  To be real, and to be worth the sacrifice, the newly minted union must negotiate a contract with Burgerville that actually increases workers’ security and makes material improvements to their working conditions.

As the initial rounds of bargaining open, the company has come to the table with representations of its good faith, even having taken to the media to present Burgerville as respectful of workers’ rights and eager to become a pioneer in the industry in working productively with the union.  If the company is sincere, negotiating a contract should be quick and relatively painless.

But so far, nothing substantive has been agreed, and, at the same time, key activists have been fired on pretextual charges by the company, which refuses to discuss their reinstatement.  One wonders.

If you assume that Burgerville is just as opposed to sharing control of its workplaces as it has been up to now, we still could have a huge fight ahead. Workers at about half a dozen of the 42 Burgerville stores have publicly come out in support of the union, and so far have won NLRB elections at only two. The contract would only cover workers at the two NLRB-certified locations.  If a beneficial contract is quickly negotiated, this would encourage workers in other stores to join the campaign.  To avoid this, Burgerville could slow walk the contract negotiations and continue pressuring the workers who led this historic drive in an effort to convince workers in unorganized stores—and even in the organized shops—that there is no future with the union, and no benefit from paying union dues. We are hopeful that the company will continue having real discussion about the union’s demands for fairer scheduling, better wages, and a safer, more respectful work environment. But if Burgerville management is blowing smoke about wanting to respect workers’ choice to organize, it may dig in against allowing any good to come from recognition of the union.

If that happens, what’s to be done?  In the long run, the NLRA must be amended to require arbitration of first contracts.  Under such a system, after a reasonable period of bargaining to reach a mutual agreement, both sides would offer their last and best offer of contract terms, and an arbitrator would choose one or the other offer, which would be recognized as the initial contract.  Since both sides will want their terms to be chosen, each has incentive to offer the most reasonable acceptable terms.  At a minimum, the workers would win a first contract.

Of course, we can’t expect any such change soon. But when Democrats again win control of the federal government, this, and other, labor law reforms must have a very high priority.  It is not acceptable that labor law reform be put off, once again, until a “later” that never comes.

In the meantime, the workers have to stay strong, and stay together, girding for what could be a long struggle.  The community must rise to support this historic effort.  Even after the election victories, the boycott of Burgerville called by the union remains in effect.  We can help by honoring the boycott. A rite of spring in my family, and one of my own favorite indulgences, has long been celebrating the arrival of fresh Oregon berries by enjoying a Burgerville strawberry shortcake.  Won’t be doing that this spring.  I hope you won’t either.

And as workers reach out for help, the community must respond with enthusiasm and vigor.

From Michael’s desk

On February 24, 2018, the United States Supreme Court heard oral argument in a case that could have profound negative impact on low wage workers in Oregon and across the nation. The case, Janus v. AFSCME, involves the issue of whether public employees unions may charge non-members who are covered by a collective bargaining agreement for the costs of negotiating and administering the contract that benefits them. Unions have an obligation to provide fair representation to all workers covered by a contract, even if they are not members of the union, or do not pay union dues.  In 1977, the Court held in Abood v. Detroit Board of Education that unions could not require nonmembers to join the union, nor pay union dues to pay for political and speech activities with which they disagree. However, Abood established that such workers could be charged agency fees for their fair share of the cost of negotiating and administering the contract. The plaintiff in Janus is trying to overturn this long-settled principle.

The case currently before the Supreme Court comes from Mark Janus, a child support specialist for the Illinois Department of Healthcare and Family Services. Janus is not a member of the American Federation of State, County, and Municipal Employees (AFSCME) local chapter (the union working with many public sector workers in the state). But in Illinois and some 21 other states, including Oregon, workers may be required to pay “fair-share” fees, even if they decline to join the union, because they still benefit from the union’s bargaining activities.

Janus, however, argues that because public sector unions enter into bargaining agreements with the government, all of their activity should be seen as political. And because he disagrees with that political activity, he wants to be able to opt out of paying any fees to the union. Anything less, Janus and his lawyers argue, is an infringement on his First Amendment rights.

AFSCME and other public sector unions disagree. Instead, they see the case simply as a political attack on one of the last strongholds of the US union movement. According to NPR, citing data from the Bureau of Labor Statistics, “while the union membership rate in the private sector is a meager 6.5 percent, it’s more than a third among public employees.” This case is one part of a coordinated attack by right wing groups aimed at defunding and disrupting organized labor--the last major obstacle to complete corporate dominance of our politics and governance.

In 2016, the Supreme Court heard a similar case, Friedrichs v. California Teachers Association, but deadlocked in a 4 – 4 decision following the death of Justice Antonin Scalia. But with a full court, including Trump appointee Neil Gorsuch, a conservative majority is expected to overturn Abood, effectively turning the public sector into a “right to work” zone.

The effects on public employees unions and their members are likely to be severe.  After Wisconsin public employees lost the right to charge fair share agency fees, public employee unions lost most of their ability to bargain for and win fair conditions and to play much of a role in the politics of the state.  2014 High School Teacher of the Year Rick Erickson was happy with his job in 2009, making $35,770 a year teaching chemistry and physics. Then, Wisconsin passed a law which eliminated agency fees and dramatically limited the ability of teachers and other public employees to bargain with employers on wages, benefits, and working conditions. After this change, Erickson saw his take-home pay drop dramatically: He now makes $30,650. The local union he once led—the Bayfield Education Association—is no longer certified to collectively bargain, so he can't formally negotiate with the school district for things like prep time and sick days. He pays more for health care and his pension, and he says both he and his wife (also a teacher) may now not be able to retire until they are much older than they had planned.  Meanwhile Wisconsin—once a proud bastion of worker political power—is now firmly in right-wing, anti-worker control, and voted to elect Donald Trump.

Most of the workers NWJP represents do not have a union, and almost none are public employees, so why should this possible impending damage to public employee unions matter to us? I suggest that there are at least 6 reasons: 1) public employment under a collective bargaining agreement has been an important path out of poverty for workers of color and for women; 2) higher wages for unionized workers have been shown to lift wages for all workers in the economy; 3) the role that public unions have played in legislative elections and ballot measure battles has been critical, partly off-setting the huge financial resources available to the right; 4) the advocacy of labor in general—and public employee unions in particular—has been very important in each of the recent legislative advances for low wage workers we’ve been able to achieve in Oregon over the last few years, including raising the minimum wage, winning paid sick leave, attacking wage theft, and guaranteeing equal pay for equal work; 5) just as important, strong policy advocacy to resist efforts of business to degrade worker protections is an important barrier to keep our state from moving backwards on workers’ rights; and 6) the public employees unions have generously pitched in to support efforts of grass roots organizations like PCUN, Causa, and NWJP.

We will probably see a decision of the Supreme Court as early as June. Labor leaders in Oregon are hard at work planning for the worst, and devising ways to adapt and survive, to avoid Oregon becoming another Wisconsin. We should keep informed of these efforts and support them however we can. We are called to pay particular attention during this critical time; we must be creative, resourceful, and energetic in responding to this challenge, ready and willing to rise to the occasion, to join together in solidarity with progressive allies as one of our very highest priorities.

From Michael’s desk

Why is ORS 181A.820 so important, and why are anti-immigrant organizations working so hard (and spending so much money from out-of-state millionaires and alt-right organizations) to put a measure on the ballot to overturn it?

Sometimes called Oregon’s sanctuary law, actually, ORS 181A.820 doesn’t provide immigrants with sanctuary at all; indeed, no state has the constitutional authority to do so. Under Article II of the constitution, immigration is a matter completely reserved to Congress.

What the law does do is to assure that local police resources are reserved for enforcing Oregon’s criminal laws, and aren’t squandered doing the work of federal ICE agents in finding and apprehending hard-working, law-abiding berry harvesters and landscapers who are working in Oregon without authorization. Local police departments have plenty to do investigating real crimes against people and property. Immigration law is quite complicated, and local police aren’t trained about the nuances of enforcing it. This is a recipe for violation of the rights of those of perceived foreign appearance. If an immigrant violates the criminal laws of Oregon, ORS 181A.820 permits police to arrest them and to communicate freely with ICE about their identity and status. It is only when a person’s sole offense is how she entered the country that the law restricts local police activity.

This is partly to protect public funds from waste and misuse, but the implications are far broader. The derivation of the term “outlaw” comes from old English law under which the king could ordain that certain persons were outside the protection of the king’s laws. Such persons became completely vulnerable to the predations of others who abused them. They had nowhere to turn for help or protection. At the end of the day, their only remedy to protect their lives, families and property was to arm themselves and resort to self-help.

Prior to the adoption of ORS 181A.820, unauthorized immigrants in Oregon found themselves in virtually such an “outlaw” state. I’m reminded of a client who sought my help some years ago. He’d given a hitchhiker a ride, was robbed of his car and money at knife-point, and left, barefoot, along the side of a country road. He walked eleven miles into town, found the police department, and reported the robbery. Rather than investigating this violent crime, the police arrested and jailed him. When he was released weeks later, no steps had been taken on his complaint, and the car had not even been reported as stolen. However one feels about unauthorized immigrants in our communities, surely we can all agree that failure to enforce laws like assault and armed robbery is a bad idea.

Cases like this would certainly return if ORS 181A.820 were repealed. People in the immigrant community would lose confidence in the police, and would not report crimes or cooperate in their investigation. Police leaders across the state agree that this would severely hamper their efforts at effective community policing.

A ballot measure to repeal ORS 181A.820, IP22, is being circulated for signature by out-of-state millionaires and by Oregonians for Immigration Reform, a nativist group that is hostile to the rights of immigrant workers.

If you are asked to sign IP22 to repeal the law, you should decline. And if the huge sums pouring in from out-of-state result in the measure being certified for the ballot, all of us must unite to defeat this hate-inspired step backward.

From Michael’s desk

The Ninth Circuit Court of Appeals recently decided Arias v. Raimondo, a very important case seriously affecting the ability of immigrants to use the federal courts to enforce employment laws.  When an employee complained of employer practices and sought to work elsewhere, the employer threatened to turn the employee over to ICE if he took other work.  Then, when the worker sued, the employer’s attorney  arranged

Photo by Doug Yarrow. Michael explains pending Wage Theft legislation in our 2015 advocacy day.

with ICE for the worker to be picked up when he appeared for his deposition.  The employee sued the employer’s attorney, individually, for retaliation under the Fair Labor Standards Act.  The employer’s attorney defended on the grounds that he had never employed the worker, and therefore was not subject to suit for retaliation under the FLSA.  The 9th Circuit disagreed, finding that the attorney could be held responsible and sending a warning shot across the bow of any defense attorney inclined to deny workers a remedy for unpaid wages by exploiting the worker’s immigration status.

If we cannot keep the courts open to claims by unauthorized workers that their rights are being violated, all workers will lose basic protections since the floor under all workers would be eroded.  Congratulations to the Ninth Circuit for a great decision.

From Michael’s Desk

Photo by Doug Yarrow

As the 2017 session of the legislature draws to a close, it’s perhaps an apt time to assess the state of law-making in Oregon as it affects the most vulnerable workers in the state.  It’s kind of a mixed bag.

An important dynamic during this past session was that the leadership wanted new taxes to close a looming budget deficit, and evidently felt that it was necessary to have business buy-in for whatever taxes were to be passed. During most of the session, this gave the business lobby a huge advantage in being able to kill, modify or stall bills they did not like. Much of the wage theft agenda fell victim to this dynamic.  Many other pro-worker initiatives also were initially stalled.

On the other hand, especially after the talks about taxes finally failed, a number of very important, pro-worker measures were enacted, making this, on balance, a fairly successful session for workers, especially immigrants.  Licensing of building services contractors, the nation’s first law entitling at least some workers to fair scheduling, penalties for making workers submit false wage records, medical coverage for all children in Oregon, regardless of immigrant status, a ban on state agencies disclosing personal data to assist federal immigration agencies, implementation of anti-profiling recommendations, health equity, equal pay for equal work for all suspect classes, and a procedure for formerly incarcerated workers to obtain a certificate of compliance with law in order to find work were all adopted by the end of the session.

These are important advances for working people and should be celebrated.  Legislators involved should be congratulated.

On the other hand, the legislature in many respects failed in the task of making sure that workers who labor get paid fairly for their work.  Wage theft is a huge and growing problem in Oregon, affecting workers, fair employers and our communities. The bills offered by the Coalition to Stop Wage Theft died in the legislative process.  Workers not paid the minimum wage must still confront the risk of having huge attorneys’ fees assessed against them; efforts to make it easier to collect wage judgments and help for community organizations to help low wage workers through the complicated wage collection process were not enacted.

So it was kind of a mixed bag.