Category Archives: News

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!

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.

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. 

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.

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.

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.

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