Category Archives: News

Inside NWJP: Meet our law clerk Leila Wall

Leila

Leila is a Lewis & Clark Law School third-year law student who has been a legal extern with us since September. While at NWJP, Leila has written complaints for federal court and BOLI, drafted discovery requests, and lobbied at the State Capitol. She has particularly enjoyed working with clients and researching new areas of the law with which she was previously unfamiliar.

[pullquote align="right" cite="Leila" link="" color="#cc2e2e" class="" size=""] I look forward to whatever the future holds thanks to everything I've learned at NWJP.[/pullquote]

Leila says that being a law clerk at NWJP has been her favorite part of law school. “My two semesters at NWJP have provided me with invaluable legal experience and ignited passion in an area of the law I didn’t know I was interested in.” Leila believes that externing at NWJP has allowed her to positively impact people’s lives, and she is thankful for the opportunity to reconnect with the type of work that made her want to become a lawyer in the first place.

In her free time, Leila enjoys cooking, baking, doing arts & crafts, and practicing yoga. She is an avid explorer of the outdoors and will happily spend hours recounting her favorite hiking destinations. When her schedule allows it, she does freelance graphic design work for nonprofit organizations.

After she graduates in May, Leila hopes to continue supporting and educating workers in the Pacific Northwest so they are able to assert their rights. “I am grateful for all of the knowledge I gained during my time here, and for the kindness and generosity of the entire NWJP staff.” We are grateful for her hard work, indelible smile, and willingness to take on the challenges we threw her way. We are sure she'll achieve anything she sets her mind to accomplish.

 

 

January 2016: From Michael’s Desk

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

As we start the New Year, strident anti-worker voices seem to be everywhere. In the fall, we are likely to see a number of ballot measures funded by wealthy corporate interests designed to cripple the ability of workers to act together in their common interest. Litigation pending in the Supreme Court poses a similar threat. Some of the leading presidential candidates spew hateful, anti-immigrant messages appealing to fear and nativism, and they seem to be winning support through this call to the basest impulses of the public. And anti-government extremists stand in armed rebellion against efforts to make sensible rules about the use of our common public lands.

If workers’ voices are to penetrate this din, it will only be because we speak and act together with savvy, purpose and courage.  Recent events show that when we act together, we can win both big and small advances for workers—whether in the legislature, at the ballot, or on the job site.  But our ability to do this is in jeopardy.  We are in a critical struggle for the future of a progressive Oregon. At NWJP we intend to weigh in on this fight, wherever and however we can.  Let’s make this a year that strengthens workers’ voices and advances their interests!

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

Oregon Legislature looks to tackle big issues for low-wage workers in 2016

By Marcus Swift, NWJP's Staff Attorney
Photographer unknown

The 79th assembly of the Oregon Legislature doesn’t officially start until February 1, 2016, but efforts are already underway to improve conditions for Oregon workers. The most pressing issues? An increase to the state’s minimum wage and added tools to enforce existing wage laws, protect workers, and collect unpaid wages.

Various proposals to increase the minimum wage have been introduced through both the ballot initiative process and the legislature, including the latest – a plan by Governor Kate Brown to raise the minimum wage gradually to $15.52 in the Portland metro area and $13.50 statewide by 2022. Hundreds of supporters of an increased minimum wage attended a legislative hearing on the topic held on January 14. We heard compelling testimony from workers from around the state, including that of Bertha, one of our clients, who dreams of sending her daughter to college but can barely afford to stay afloat on her minimum wage job.

Working people in Oregon stand to gain much needed economic stability through efforts to raise the minimum wage. At the same time, an alarming number of workers are not receiving their wages after the job is done. This is especially common for people who work in restaurants, retail stores, construction, Oregon’s agricultural industry, and as domestic workers.

This session, the Oregon Coalition to Stop Wage Theft, led by NWJP, is supporting legislation to lay a solid foundation for additional reforms in 2017. Our proposed bill in 2016 would increase workers' ability to access their own wage and hour records (including detailed pay stubs), and hold employers accountable for denying access to such records. Additionally, the bill would give the Oregon Bureau of Labor and Industries (BOLI) additional resources to stop employers who are repeat offenders.

In an interim hearing on January 13, lawmakers heard from state and national experts on wage theft, officials from BOLI, and several workers in industries impacted by wage theft, including healthcare, construction, and the building trades. A tentative hearing on the full legislation is expected to take place on February 4, 2016.

To help make a difference and pass stronger wage theft laws this session, click here to find your Oregon State Senator and Representative. Then call or e-mail them and let them know that you support stronger enforcement of wage theft laws during the 2016 session.

Using the National Labor Relations Act to protect non-union workers

By Corinna Spencer-Scheurich, NWJP's Deputy Director
Photographer unknown

We all know that unions are the backbone of the American middle class and that workers who do not enjoy a unionized workplace often suffer more abuses, get paid less, and have fewer protections.

Even where they don’t have a union, workers can take action together to improve their working situations, and those actions are usually protected. At NWJP, we have recently seen each of the following situations serve as a catalyst for groups of clients to band together and demand changes in their workplace:

  • A verbally abusive supervisor;
  • Relocation of the work site, which led to a longer commute and a longer work day for the same money;
  • An aggressive co-worker;
  • An unfair tip pool;

Whether or not other laws protect workers regarding these issues, Section 7 of the National Labor Relations Act (NLRA) gives most employees the right to “engage in…concerted activities” for their “mutual aid or protection.” For example, to complain about that supervisor, employees are protected when they get together to schedule and attend a meeting with the general manager. They are also protected when they engage in a group work stoppage to demand a raise to help offset the loss of time commuting to the new warehouse.  They are protected when they gather signatures on a letter to the boss regarding the aggressive co-worker. And, they are protected when they meet outside of the workplace with other servers to talk about the way tips are distributed and how to approach the owners about the problems.

In each of these cases, our clients were fired for engaging in the protected activity. To support them, we filed a complaint with the National Labor Relations Board (NLRB). In all of the cases, the NLRB engaged in immediate and extensive investigations into potential violations. NLRB remedies are limited to cease-and-desist orders, notice postings, and reinstatement and back pay if the worker has legal immigration status. However, the process allows for a relatively rapid venue to address attempts to repress organizing efforts and to negotiate a favorable settlement of these and other employment law claims.

3…2…1… Happy new worker protections!!

By Corinna Spencer-Scheurich, NWJP's Deputy Director.
Photo by Sanja Gjenero, Freeimages.com

Our advocacy work with the Coalition to Stop Wage Theft and in the Fair Shot for All Coalition helped Oregon ring in the New Year with some important new protections for low-wage workers!

Here is a quick overview of the changes:

RIGHT TO SICK LEAVE

Starting this year, workers across Oregon will have a right to accrue sick leave. Those who work for an employer with 10 or more employees (or six or more in Portland) must receive paid sick leave. Workers will accrue at least one hour of sick time for every 30 hours of work, up to a total of 40 hours a year. In this day and age, it's amazing that we're celebrating a legislative victory about simple human dignity, but for the thousands of Oregonians who couldn't afford to stay home to rest and recover from an illness before, it's a big deal. This new protection will ensure that workers do not have to choose between their health — or the health of their children or their co-workers — and their livelihood.

WAGE TRANSPARENCY

Keeping workers from discussing their salaries with co-workers was a powerful way to keep wage inequality alive. In an effort to achieve equal pay for equal work, however, workers are now protected from retaliation if they discuss their wages or the wages of their co-workers. And workers can now sue in Oregon courts to protect this right, which will allow them to better identify discrimination in pay.

PROTECTIONS FOR WORKERS WITH PRIOR CONVICTIONS

People with criminal histories, often members of the most vulnerable populations (people of color, those who cannot afford proper representation, those with mental illness or addictions to drugs and alcohol, among others), face unfair barriers to employment even after they have already served their time.  Even where workers have turned their lives around, it is often impossible to find work. This results in a growing subclass of workers who are subject to exploitation and poverty. Oregon has taken an important first step in protecting workers with criminal conviction histories from unfair job discrimination in hiring. It is now illegal to require an applicant to disclose a criminal conviction on an employment application or prior to an initial interview.

NEW PROTECTIONS FOR DOMESTIC WORKERS

In recognition of the hard work and often grueling conditions that domestic workers face, an array of new protections have gone into effect in the New Year. Housekeepers and in-home child care providers will now be entitled to overtime pay if they work more than 40 hours a week (or 44 if they live in the home). They also will be entitled to 24 consecutive hours of rest each week and must receive eight hours of uninterrupted sleep to be considered off-the-clock. If they work at least an average of 30 hours a week, they are entitled to receive three paid personal leave days a year. They are now also protected from discriminatory harassment and from confiscation of their passports if they are immigrant workers.

 

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!

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