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California's immigrant workers score court victories on wages

State's immigrant workers score court victories on wages

SACRAMENTO BEE
Published: Monday, Apr. 6, 2009 - 12:00 am | Page 16A

In a major legal win for immigrant workers, thousands of California construction workers will start receiving checks April 15 to compensate for unpaid wages and other alleged labor violations committed during California's housing boom.

The $8.5 million legal settlement benefits nearly 3,100 former and current workers for several companies that built houses in Southern California, the Central Valley, Central Coast and San Francisco East Bay.

A few workers initiated the complaint in 2006 after approaching a Spanish-speaking attorney, but lawyers say the case grew into one of the biggest class-action lawsuits in California involving mostly Latino construction laborers, including some who are undocumented.

"We hope that this sends a strong message that all workers have rights," said one of the attorneys, Gladys Limon of the Mexican American Legal Defense and Educational Fund's Los Angeles office.

The construction settlement isn't the only indication that courts and government agencies are dealing with long-standing allegations of underpaid immigrant workers.

State Attorney General Jerry Brown's office has a new Underground Economy Unit that investigates businesses for suspected wage and workers' compensation abuse and tax fraud.

And in Tulare County — a week after the construction workers' settlement — a Superior Court judge signed off on a nearly $1.28 million settlement for immigrant dairy workers in the Central Valley.

Suits like these help counter fear among undocumented workers — and legal immigrants — who assume they are not covered by the same labor rights as citizens or are intimidated and afraid to assert themselves, Limon said.

Worker's status 'irrelevant'

MALDEF received a rare endorsement for its victory from Minuteman Project leader Jim Gilchrist, who supports strong measures to deport illegal immigrants. "The lawyers are doing the right thing in going after these slave-trading employers," he said.

But federal officials, he suggested, should now look into prosecuting the businesses for hiring illegal immigrants and deport the workers — with the money they're entitled to get.

California civil code specifically states that "for purposes of enforcing state labor and employment laws, a person's immigration status is irrelevant to the issue of liability."

The dairy settlement benefits about 650 workers, and is believed to be the largest class-action back-wage agreement involving California's dairy industry, according to Mark Talamantes of San Francisco, one of the employees' attorneys.

He has handled five cases over the past decade on behalf of immigrant dairy workers. His partner on some of these cases, California Rural Legal Assistance Foundation, reports that dairy workers often report to their offices with complaints of unpaid overtime.

Oakland attorney Bill Lann Lee, who was President Bill Clinton's chief of civil rights in the Justice Department, was part of the team representing the construction workers.

If illegal immigrants are not included under labor rights, he said, employers could have unbridled license to hire and exploit them.

"As a matter of policy, you do not want to create two classes of workers," Lee said.

If you strip a group of rights, he said, "you create an underclass, and then jobs tend to migrate to that underclass and it affects everyone."

Lee said that during legal proceedings, rival attorneys broached the issue of immigration status, perhaps to try to get workers to back down.

"In the context in which it was raised," Lee said, "I think there was an effort to get plaintiffs to think twice about participating and testifying."

Brown: Employers tempted

Brown, the Democratic attorney general, said there is "a great opportunity for exploitation" among immigrant workers.

"Lower-paid workers are often forgotten," he said.

During the housing boom, he said, competition tempted businesses to gain an edge by cheating vulnerable workers and putting "downward pressure" on wages.

Immigration enforcement, Brown also noted, is a federal duty, not the state's.

Census data suggests that immigrants are nearly 37 percent of California's labor force, and that one in every 11 workers in the state is undocumented.

As part of the March settlements to compensate workers, the construction and dairy companies do not admit to committing labor violations.

The construction workers who will share in the $8.5 million settlement — a quarter goes to attorneys' fees — installed insulation, rain gutters, fireplaces, cabinets and other material in new housing subdivisions in California suburbs.

Those entitled to get compensation worked for the Western Insulation Co. or Schmid Insulation Contractors Inc. at any time between Oct. 13, 2002, and Sept. 30, 2008, or for Masco Contractor Services of California Inc. at any time between Jan. 1, 2008, and Sept. 30, 2008.

The companies are subsidiaries of Michigan-based Masco Corp., one of the world's biggest producers of home building products.

Masco spokesperson Kathleen Vokes said Masco has no comment about the lawsuit other than the contents of a press release explaining that workers' payments will depend on length of time on the job and position held.

Ivan Gonzalez, who lives in Thousand Oaks, said he was supposed to earn at least $16 an hour at Schmid, but his pay rarely matched that promise.

Employees didn't get paid, he said, for time loading and unloading material from warehouses, traveling, or working overtime, at night, sometimes illuminated by car headlights.

Workers also alleged they had to pay for their own tools, and if they didn't meet production quotas, their pay was docked in a practice called "negative bonuses."

Gonzalez said supervisors wanted to pay workers a lower wage for time in meetings to plan jobs. Because he objected to this and other unlawful practices, he said, he was fired.

"They thought I didn't know my rights at all," Gonzalez said in Spanish, his first language. "But they found out I did know what I was talking about."

Joel Villaseñor, the Los Angeles County attorney workers first approached, said some were very nervous because they were undocumented, or because they or a relative had an application pending to obtain legal residency. They were worried the lawsuit might jeopardize that, Villaseñor said.

"We told them, 'We don't need to know (status) and it doesn't matter. You're protected,' " he said.

Overtime denied, suit says

In January, Brown's office filed suit against a California drywall business, seeking $3.13 million in restitution for employees and $1 million in civil penalties.

The Bakersfield business is accused of paying workers flat daily rates while denying workers breaks and overtime; withholding workers' wages to use as incentive pay for supervisors; and paying workers in cash to avoid taxes and workers' compensation payments.

Barry Goldner, attorney for Charles Evleth Construction Inc., said his clients deny the allegations and have not yet seen hard evidence backing the claims.

"It's always their intent to comply with the law," Goldner said.

Clarence Bosman, the Tulare County dairyman who was sued by workers, could not be reached for comment.

Martin Bravo, a former Bosman employee, said he earned about $950 every two weeks for what were supposed to be 10-hour shifts. The shifts routinely lasted longer, he said, because he was told to stay and help the next shift of workers.

"They didn't give us lunch breaks. We were milking cows with tacos in our hands. We had to run to attend to all the animals. There were just too many cows," he said. "One felt like a little piece of trash."

Talamantes, the dairy workers attorney, described Bosman and other dairymen he has sued as "hard-working people" who have failed to "reach out" to immigrant workers but who are taking the law more seriously now because they have faced consequences.

"This is impact litigation," Talamantes said. "At one time, the dairy industry was the Wild West of wage law in California."