Category Archives: News

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

NWJP in interview with Portland’s KGW

Oscar Urrutia owes several state agencies and workers thousands of dollars and has failed to perform the job he promised many clients. And yet keeps working.

NWJP Executive Director Michael Dale and client Selso Sarabia were interviewed for a televised investigation into the shoddy work and wage thievery of Oscar Urrutia, a Portland-area contractor who refuses to pay regulatory fines, penalties, judgments, orders, or his employees' wages.

Click on the picture to see the KGW piece.

 

 

Ban the Box and Wage Theft

by Mark Hansen, NWJP Staff Attorney

Ban the Box is an ongoing campaign in cities and states around the country pushing for the removal of the “Have you ever been convicted of a crime?” question from employment applications. In 2007, Oregon’s Multnomah County removed the question from its job applications. Portland went one step further last July, removing criminal background check language from applications for certain jobs with the city, and joining the rapidly increasing number of cities and counties that have already adopted Ban the Box policies.

What does NWJP have to do with the Ban the Box movement and why would we support it? We’re glad you asked.

Our clients—immigrant, low-wage, contingent workers—are systematically and routinely exploited, discriminated against, and robbed of their wages. This happens because of outdated and unjust institutional structures and an economic system that views these workers as “disposable.” But it also happens because of the circumstances in which these workers find themselves: they are limited in their ability to find work, ignorant of their rights, and so desperate to earn a livelihood, they often work for months without asserting their rights, hoping their bosses will come through at some point.

Individuals returning to their communities after serving a prison sentence face similar difficulties. Trying to find employment with a criminal record is nearly impossible, and “checking the box” is a significant barrier to employment and to workers’ successful re-entry into society.

Like our other clients, those with a criminal record are eager to find work, so they will take the jobs everyone else would run from—the same unsafe, low paying, temporary, and risky jobs we see our immigrant and low-wage clients take. Also like our clients, once in those jobs, people with records are likely to be exploited and taken advantage of.

You see where we are going: people with records are becoming yet another “underclass,” a group of people who is unjustly targeted for abuse. Because these individuals don’t have many choices when it comes to employment, they are less likely to report unlawful employment practices including wage theft, discrimination, and unhealthy or unsafe working conditions. Many may also be unaware of the workplace protections the law provides. Instead, feeling lucky to have found a job at all, they fear losing it and remain silent.

Advocates know, however, that there are valid concerns regarding the employment of individuals with records. In Oregon, laws already in place prevent individuals with certain criminal histories from working with vulnerable populations or in finance, or have access to sensitive, personal information. Ban the Box is not seeking to repeal these laws, but wants to ensure that individuals—who previously had no chance of even receiving a call-back—get an opportunity to make it to the interview stage and to explain why they are now good candidates for employment.

The stigma associated with having broken the law is difficult to ignore, especially at the initial stages of job applicant screening, and it affects minority and low-income applicants disproportionately. This is why proponents of banning the box believe that removing the conviction question will ensure a larger and more diverse candidate pool and will connect employers with a wider selection of qualified employees.

Many of the Ban the Box campaigns, including the one in Oregon, agree that employers should have the right to require a background check prior to employment. However, they say, a background check should be the last step, not the first. This encourages employers to select the most qualified candidates for the job, allows the prospective candidate to be judged on the basis of qualifications alone, and gives both parties the opportunity to openly talk about questions that may come up. Advocates want employers to set the Box aside, and make employment decisions based on real impressions, not stigma or misperceptions.

For a person with a record, re-entry into the community is already difficult. Keeping people with records unemployed or employed in poverty-wage jobs is more likely to lead to recidivism. (According to Fair Chance for All, the group that leads the Ban the Box campaign in Portland, people with records who became employed were twice as likely to avoid future legal trouble as those who were unemployed.) Banning the box allows individuals who have made mistakes to move past the debt they’ve already paid society, and gives them a genuine opportunity to start anew. And that’s good for all of us.

For more information about the Ban the Box campaign, please visit Fair Chance for All’s website (fairchanceforall.com), or the National Employment Law Project’s website (www.nelp.org).