Crowd Rallies This Weekend for Domestic Workers Bill of Rights

Crowd Rallies This Weekend for Domestic Workers Bill of Rights

By: Molly Rosenthal | March 7, mind 2011 – 12:23 pm

Crowd Rallies This Weekend for Domestic Workers Bill of Rights Domestic workers, employers and their families gathered at the Women’s Building this Sunday in support of a new Domestic Workers Bill of Rights.

Introduced by California assembly member Tom Ammiano last month, the bill would provide basic job protections for nannies, caregivers and housekeepers, regardless of immigration status.

Historically, domestic workers have not been included in many labor laws. California’s Occupational Safety and Health Act (CAL-OSHA) doesn’t apply to them. In many cases, California overtime law does not apply, either — especially in the case of live-in workers. If signed into law, the legislation will be the second of its kind. New York state enacted a similar law last August.

If the bill is passed, domestic workers will be entitled to a roster of benefits familiar to most other workers: overtime pay, paid vacation, meal and rest breaks, workers compensation, advance notice of termination.

It’s that last one that would be most welcome to Esmeralda Montufar, a domestic worker from Graton Day Labor Center in Santa Rosa, who told the crowd that she had once been fired via Post-It note. She arrived at work one morning to find a note that read “No work today” on the front door, even though her employer was home.

“After the family invited my husband and me over for Christmas dinner, the note confused me,” Montaf said through a translator. “I took it home to my husband because I didn’t know what to do. I kept thinking, ‘Are we a part of this family or are we not?’”

Other aspects of the bill illuminate the particular strangeness of working in a person’s home, such as the right, for live-in employees, to eight hours of sleep and access to kitchen facilities.

“So many of us want to be good employers but we don’t know how,” said Jessica Lehman, leadership organizer for Hand in Hand, who sponsored the event along with Mujeres Activas y Unidas. “We’re  here because all our justice is all wrapped up together. If you’re talking about women’s rights, it’s connected to immigrant rights, disability rights, and so on.”

Mujeres Activas y Unidas plans to bring domestic employers and workers together to educate them on maintaining a just and healthy relationship, while raising morale through expert hearings and media events.

The first hearing for the legislation will be held in Sacramento on April 13.

En Español:

Este domingo se reunieron trabajadores domésticos, empleadores y sus respectivas familias en el Edificio para Mujeres en apoyo de un nuevo Proyecto de Ley para Trabajadores Domésticos.

El asambleísta de California Tom Ammiano presentó el proyecto el mes pasado. El proyecto de ley daría protección básica laboral a niñeras, proveedores de cuidado y amas de casa sin importar su status inmigratorio.

Históricamente, los trabajadores domésticos no se incluyen como tal en muchas leyes laborales. La Ley de California para la Salud y el Cuidado Ocupacional (CAL-OSHA) no se puede aplicar a dicho grupo de empleados. En muchos casos, la ley de horas extra en California tampoco se puede aplicar; en especial en el caso de trabajadores que viven de planta en el lugar de trabajo. Si se aprueba como ley, la legislación sería la segunda de su especie. El estado de Nueva York aprobó una ley parecida el pasado mes de agosto.

Si el proyecto de ley se aprueba, los trabajadores domésticos tendrán derecho a un abanico de beneficios que muchos otros trabajadores tienen como el pago por horas extra, vacaciones pagadas, descansos para comer y descansar, compensación laboral, aviso por adelantado de liquidación. Se trata de este último el que Esmeralda Montufar, una trabajadora doméstica del Centro de Jornaleros Graton en Santa Rosa, está esperando. Le dijo a una multitud de personas que una vez la despidieron al haberle dejado una nota Post-It. Una mañana llegó a trabajar y encontró una nota que decía: ‘Hoy no hay trabajo’ en la puerta de la entrada, aunque su jefe estaba en casa.

“Después la familia nos invitó a mí y a mi esposo a cenar para Navidad, la nota me confundió”, dijo Montaf por medio de un traductor. “Me llevé la nota a la casa, a mi esposo porque no sabía qué hacer. No dejaba de pensar ‘¿somos parte de esta familia o no?’”

Otros aspectos del proyecto de ley pondrían más en claro la particular que es trabajar en la casa de una persona: el derecho para empleados que habitan en el lugar de trabajo a ocho horas de sueño, y acceso a instalaciones de cocina.

“Muchos de nosotros queremos ser buenos jefes pero no sabemos cómo”, dijo Jessica Lehman, líder organizadora para Hand in Hand, quien patrocinó el evento junto con Mujeres Activas y Unidas. “Estamos aquí porque la justicia está enmarañada. Si hablan sobre los derechos de las mujeres están conectados a derechos de inmigrantes, derechos para discapacitados, y así”.

Mujeres Activas y Unidas planea hacer que se reúnan los empleadores domésticos y sus trabajadores para enseñarles cómo mantener una relación justa y saludable y poder al mismo tiempo, levantar la moral por medio de audiencias y eventos con medios de comunicación.

La primer audiencia para la legislación se llevará acabo el 13 de abril en Sacramento.


Wal-Mart Warehouse Workers File Class Action Wage Theft Lawsuit

Wal-Mart Warehouse Workers File Class Action Wage Theft Lawsuit

By Kari Lydersen | In These Times | Monday, Feb 28, 2011, 2:57 pm

Wal-Mart Warehouse Workers File Class Action Wage Theft Lawsuit

Deathrice Jimerson and Demetrie Collins allege they were cheated out of hundreds of dollars in wages at a Wal-Mart warehouse. (Photo by Kari Lydersen)

CHICAGO—After three months of working in a Wal-Mart warehouse in the Chicago suburbs last fall, Robert Hines was fed up with getting paid much less than he had been promised by the company Reliable Staffing, which hired temporary workers to unload containers.

But the final straw came when he wasn’t paid at all for seven 10-12 hour days he’d worked shortly before Thanksgiving, he says. His calls to the agency weren’t returned, and when he went in person to demand his money, he said a manager claimed he and his work partner, Leo Williamson, had never worked those days at all.

So Hines and Williamson are among eight named plaintiffs in a class action lawsuit filed today in federal court charging Reliable Staffing, its owner Daniel Gallagher and Schneider Logistics, which runs the Wal-Mart warehouse in Elwood, Ill., with violating state and federal labor laws.

When former Reliable Staffing workers marched into the agency last Monday demanding pay and billing records (as is their right under the Illinois Day and Temporary Labor Services Act), they were not given any records and, they say, were greeted with hostility by Gallagher.

Under the Illinois day labor act, considered one of the nation’s strongest such laws, the workers have the right to see what Reliable Staffing billed Schneider for their work, and what it paid them. If the hours and/or piece rates reported to Schneider and reported to the workers themselves don’t add up, it could show Reliable Staffing was intentionally not paying workers for their labor.

The plaintiffs think that was standard practice at the company.

“The lady looked me in the face and said I have no recollection of you working,” said Hines, 37. “I got vulgar comments, a snazzy attitude from them. And I was breaking my back for peanuts, or to not even be paid at all.”

The lawsuit alleges violations of the aforementioned Illinois Day and Temporary Labor Services Act, along with the Fair Labor Standards Act, the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act. Allegations include unpaid overtime, failure to pay state and federal minimum wage and failure to pay at least four hours’ wages when workers were called in to work, as mandated by the day labor services act.

The lawsuit says that plaintiffs who worked for Reliable Staffing from 2006 on were promised $10 an hour, plus a piece rate for unloading trucks, including a higher “premium” piece rate for heavier goods. It alleges they were not paid the piece rate as promised, and that in fact workers were often paid less than state and federal minimum wage along with not being paying overtime.

Hines said that at the rate promised, his paychecks for working often from 6 a.m. to 6 p.m. should have been at least $300 a week – not counting overtime, which he also should have been due. But he was usually paid $239.

The suit also alleges workers were not paid for mandatory waiting time, adding up to multiple hours per week. It says that when one defendant wrote his arrival time on a sign-in sheet, a supervisor actually tore the sheet up.

“Reliable Staffing actually did not keep track of people’s hours,” said attorney Chris Williams. “That’s illegal. Even if you are paying a piece rate, under federal law you need to show that adds up to at least minimum wage.”

And the suit alleges Reliable Staffing violated state laws by failing to provide workers with documentation of where and for which third party they would be working, the nature of the work and how much they would be paid. The suit basically alleges that workers were paid the $10 piece rate only – often divided between two or three workers, workers say – and then the employer simply made up the number of hours the worker supposedly worked by dividing the piece rate by 10.

“The check stub is a fiction—their check stub could show they worked 36 hours when they really worked 72 hours,” said Williams. That’s why, Williams said, it’s so important the workers are able to demand their billing records under the state day labor services act.

“The workers are supposed to be able to go into the office and get this information themselves,” Williams said. “But unfortunately the law isn’t working. That’s why we had to take this to federal court.”

The suit says:

In fact, Defendants Reliable and Gallagher provided Plaintiffs and similarly situated laborers with check stubs that contained false information, showing the final gross compensation to the laborer divided by $10.00, thereby showing a number of hours worked on the check stub that bears no relationship to the actual number of hours worked…

Rather than provide Plaintiffs and the Class with the actual hours worked, Defendants Reliable and Gallagher provided Plaintiffs and the Class with a fictional number of hours worked and a fictional pay rate as described in paragraph.

The lawsuit adds that failing to provide workers documentation of their employment terms makes it easier for employers to cheat workers, saying:

The Illinois legislature found that such at-risk workers are particularly vulnerable to abuse of their labor rights, including unpaid wages, failure to pay for all hours worked, minimum wage and overtime violations, and unlawful deduction from pay for meals, transportation, equipment and other items.

The workers’ want unpaid wages, going back up to three years. The lawsuit also asks for statutory damages on some counts, attorneys’ fees, and that the company be blocked from violating these laws in the future. The suit notes that under the day labor services act, third party companies like Schneider that hire staffing companies are liable and legally responsible for any unpaid wages by the staffing company.

Depending on how the law is interpreted, it’s possible Wal-Mart itself could be liable.

“Hopefully this lawsuit will trickle down and help not just us but other people,” said Hines. “Maybe they’ll wake up and see that they have to treat people fairly if they want to get more out of us. Now they’re sitting there high on the hog, eating nice food, while we’re on the dollar menu at McDonald’s.”


Georgia Lawmaker Seeks to Outlaw Day Laborers

By: GEORGE FRANCO/myfoxatlanta


ATLANTA – Day laborers are used all over Metro Atlanta for cash paying jobs. However, those days are numbered if a Georgia legislator has his way.

State Senator Jeff Mullis has introduced a bill to ban the hiring of day laborers. The proposal has sparked debate on what it may or may not do for the state of Georgia.

D.A. King is an independent consultant who has worked with Georgia lawmakers to craft previous legislation aimed at illegal immigration.

“The goal is attrition though enforcement, to encourage people in the country illegally to leave Georgia. The real villains in this are the people that hire the black market labor,” said King.

“Are we going to go after the teenagers that come knock on your door, wanting to cut your lawn? That happens all across Georgia, all over the suburbs. They’re day laborers,” said Jerry Gonzalez of the Georgia Association of Latino Elected Officials.

Gonzalez said enforcing the law would be a problem when Georgia lawmakers are struggling with red ink.

“Georgia’s budget is in a hole. How are we going to pay for it? So, this is bad for Georgia’s business,” said Gonzalez.

“If we take away the illegal labor, we’re going to have to hire legal labor, which was the original plan,” said King.

Sen. Mullis said in a statement, “The people of Georgia deserve a measure that most appropriately deals with Georgia’s most pressing needs, without hurting businesses.”


Arizona to Nativist Lobby, “Stop Cheating on Me”

State Feels Spurned by Anti-immigrants’ Expanded Focus

“I used to be Tanton’s one and only,” Arizona sobbed in a confessional interview last week, speaking of John Tanton the head of the FAIR network responsible for today’s anti-immigrant climate.

Arizona called for the interview last week after attention began to drift as other states such as Kentucky and Mississippi introduced and passed SB 1070-like legislation in their own legislatures.

Undocumented worker who became quadriplegic is moved to Mexico against his will

Hospital’s decision to send quadriplegic man back to Mexico angers those in Chicago who cared for him

By Judith Graham, Becky Schlikerman and Abel Uribe, Tribune reporters, 6:05 p.m. CST, February 6, 2011

Quelino Ojeda Jimenez, 20, is cared for by an uncle in a Mexican . Ojeda was transfered from Advocate Christ Medical Center near Chicago to his home state of Oaxaca, Mexico, without his approval. (Abel Uribe, Chicago Tribune / January 26, 2011)

For almost four months, s and s at Advocate Christ Medical Center cared for the young Mexican laborer who had fallen from a roof and lost the ability to speak, breathe or move most parts of his body.

But Quelino Ojeda Jimenez was in the U.S. with out documents, and just before Christmas he was taken from the Oak Lawn , loaded on an air and flown to Oaxaca, capital of the Mexican state where he was born.

His abrupt departure, which Ojeda says was undertaken without his consent, outraged a group of Mexicans living in Chicago who had rallied to his aid, tending to him in the and encouraging him not to give up.

Florinda Marcial, one of his frequent caregivers, said she pleaded with authorities to stop as Ojeda was rolled away on a gurney, dressed in a gown, crying. Authorities at the Mexican Consulate in Chicago also said they tried to intervene.

“They threw him out like he was a piece of garbage,” said Horacio Esparza, a disability rights advocate who runs the Progress Center for Independent Living in Forest Park.

Now, the 20-year-old man is in a Mexican that is so resource-poor that it is reusing filters for the breathing machine needed to keep him alive. After an investigation completed late last week, Advocate Health Care — the largest network in Illinois — acknowledged it never obtained Ojeda’s permission to transfer him to Mexico.

“We really do regret the way this process flowed and the steps that were taken,” said Kelly Jo Golson, an Advocate senior vice president.

“We saved his life and brought him to a stable condition,” but when it became clear that Ojeda needed a lifetime of care, it seemed best to return him close to family, she said.

That move sparked fierce criticism from Chicago’s Mexican community, and Advocate has decided to draw up comprehensive new policies to address medical “repatriations” at its 12 s, Golson said.

Such policies are important because there are potentially “hundreds and thousands of Quelinos,” undocumented immigrants building American homes or working in American factories who risk serious or injury, said Julie Contreras, national immigrant affairs commissioner for the League of United Latin American Citizens, a Latino rights organization working with Advocate on the policies.

In Illinois, more than 272,000 undocumented Latino immigrants are uninsured, according to the U.S. Census Bureau’s 2008 Current Population Survey. Only emergency medical services are guaranteed to these patients, as they are to anyone in a medical crisis; once their condition has stabilized, they have no rights to any other type of .

There is no consensus about what should happen to undocumented patients who become severely disabled and need long-term care. By law, s are required to discharge all patients to “appropriate facilities” where they can receive adequate follow-up care. This is also an ethical obligation for s, according to a recent report from the American Medical Association’s Council on Ethical and Judicial Affairs.

But rehabilitation centers and nursing homes won’t accept undocumented immigrants with no insurance, no government support, and no means to pay their bills.

That leaves s such as Advocate Christ Medical Center responsible for handling tragedies like Ojeda’s, while coping with the fallout of a depressed economy and trying to remain financially viable.

Whether Advocate had legal authority to send Ojeda back to Mexico is unclear. Although s say they are serving patients’ interests by sending them to their countries of origin, advocates argue they are potentially violating U.S. immigration laws. So far, legal repercussions remain largely unexplored.

“Immigration is the province not of s, but of the federal government,” according to a winter 2010 article on medical repatriations in the Northwestern University Law Review.

In Advocate Christ’s case, the made what it thought was a justified medical decision, not a deportation decision, said Howard Peters, executive vice president at the Illinois Hospital Association.

Cases such as Ojeda’s are relatively rare. Each year, the Mexican Consulate in Chicago gets involved with medical repatriations of 10 to 15 seriously ill or disabled undocumented immigrants, according to Ioana Navarrete Pellicer, a consular official.

What makes Ojeda’s story “completely unorthodox,” she said, is the allegation that the young man was returned to Mexico against his will and the wishes of his family. The Mexican Consulate was not consulted, but there is no legal requirement that s take this step, she said.

“I didn’t want to come back … because here there’s no … I need therapy, I need a lot of things and they don’t have,” said Ojeda, who spoke to the Tribune from a bed at Maria Lombardo de Caso General Hospital, a one-story concrete institution in a small town in the state of Oaxaca. He has gradually regained an ability to talk, albeit with difficulty, and move fingers and toes on his left side.

“I wanted to stay (in the U.S.) until I recuperated,” he said.

Ojeda’s stay in the U.S. began four years ago, when he journeyed to South Carolina to find work and to help support his Mexican family — a common law wife, his nearly 3-year-old daughter, six sisters and his impoverished parents, who live in a town of 18 small wood and straw-roof homes in the mountains.

Within a few months, he moved to Atlanta, where family members lived, and where he worked as a roofer. Ojeda came to Chicago in August to work on a building near Midway Airport, according to James Geraghty, a local lawyer who at one point represented the young man.

There, Ojeda said, he was trying to remove a sheet of metal from a roof when he pulled hard, thinking the sheet was sed by nails. It wasn’t and he fell backward over 20 feet to the ground. Three days later he awoke, a near quadriplegic connected to a ventilator, at Advocate Christ.

Imperial Roofing Group owner Anthony Ritter said Ojeda was working for a subcontractor who handled workplace issues on the Chicago job.

“I did not know Quelino,” said Ritter, adding that he thought what happened to the young man was “horrible.”

Ritter said he wasn’t sure if the subcontractor carried active workers compensation insurance. Imperial Roofing, he said, has since closed operations in Chicago, Atlanta and Houston because of the poor economy.

Ojeda knew no one here, but his aunt in Atlanta, hearing of his accident, contacted Ana Maria Cruz, a Chicagoan she had met through work.

Soon, Cruz and a circle of Mexican friends in Chicago began visiting Ojeda in the , talking to him, feeding him and helping him move his limbs.

Cruz’s husband, Reynaldo, was appointed Ojeda’s temporary guardian by the Circuit Court of Cook County’s probate division. Reynaldo Cruz said he sought legal help to successfully halt the ’s first plan to send Ojeda back to Mexico in October.

Gradually, the young man improved. It was clear he understood what was going on, and on Dec. 10 a judge removed Cruz as guardian and ruled that Ojeda could make his own decisions.

But Ojeda said he had no idea what Advocate Christ was planning.

“They did not tell me anything about leaving,” he told the Tribune, describing what happened the morning of Dec. 22, when staff quickly disconnected him from equipment and ushered him out the door.

“They told me, ‘Today you are going to your home,’” Ojeda said, recalling being struck with terror and unable to get words out. “I wanted to say something, but I couldn’t talk. I wanted to ask why.”

AeroCare Air Ambulance Service Inc. of Sugar Grove took over, conveying Ojeda to Mexico. Joseph Cece, AeroCare’s CEO, said s in that country as well as Chicago approved the patient’s transfer. “The actual responsible parties in a situation like this are the discharging and the receiving ,” he said. “The way I see it, this was a successful mission.”

The in the city of Oaxaca, where he was first taken, didn’t have a bed for him, family members say, and specializes in emergency care only, according to Pellicer, of the Mexican Consulate. That institution transferred Ojeda in early January to a smaller that doesn’t provide rehabilitation and that cannot afford new filters for his ventilator. Instead, staff cleans the filters daily and reuses them.

Almost every day, Ojeda’s uncle tries to help the young man and keep his spirits up. An aunt says Ojeda is sometimes “desperate” because “he isn’t getting better.” Ojeda’s parents and his wife live about four hours away in a rural village with a population of 140. They have spent little time with their son because they cannot afford transportation or hotels, they told the Tribune.

This is what Ojeda expected after his move to Mexico.

“I felt sad because I know how my state is. It’s poor … there’s nothing,” he said.

Without rehabilitation, he knows progress is unlikely. But still, he imagines a better future, saying, “I want to get up from here … and back at work.”

Tribune photographer Abel Uribe reported from Mexico for this report.


Study: Day laborers vulnerable to variety of employer abuses

Study: Day laborers vulnerable to variety of employer abuses

5:13 PM, s Feb. 12, 2011 | Kim Predham Lueddeke: (732) 308-7752;
Contributing: Staff Writer Vanessa Vera Roman.

LAKEWOOD — Jesus Garcia was easy prey.

Study: Day laborers vulnerable to variety of employer abuses

During a meeting Wednesday evening at the New Labor office in Lakewood, Samuel Alonso speaks about how day laborers are treated. #114780 – 2/9/11 – LAKEWOOD – ASBURY PARK PRESS PHOTO BY THOMAS P. COSTELLO

The Mexican native had lived in the United States no more than three weeks when he was hired to work for a Manalapan landscaper. For $8 an hour he cut grass, whacked weeds, even did a little welding.

At first, his boss paid him a couple hundred dollars for his work, he said. But soon, pay day would come around and there would be no money for Garcia.

Garcia, 40, of Lakewood, worked for the company about a month and a half. Gradually, his unpaid wages grew to around $1,000 — approximately 125 hours of free labor.

“I felt impotent. It made me feel that I couldn’t do anything,” Garcia said Wednesday.

Out many days’ pay, Garcia had to turn to his friends for financial help. He never tried to recover his lost wages, partially out of ignorance of his rights but also, he said, because he needed to focus on finding another job to pay off the expenses he had incurred.

Garcia’s story is all too common.

Talk to day laborers and their advocates around the state, and the stories come pouring out: The cook’s assistant who was forced to continue working with a swollen, bloody head after the chef hit him with a heavy pan. The landscaper who pretended to run over his workers for a laugh. The construction worker who lost an eye when his boss refused to take him to a for .

“There’s a lot of abuses going on,” said Carmen Salavarrieta, co-founder of the Plainfield-based Angels in Action, which often advocates on behalf of day laborers.

A recent survey by the Seton Hall University School of Law in Newark showed day laborers are victims of a wide range of employer abuses, including wage theft, not being provided proper safety gear and even assaults on the job. Such abuses, particularly wage theft, are by no means isolated to the day laborer community. But day laborers are especially vulnerable by nature of who they are. Many are undocumented immigrants who, because of their immigration status, ignorance of their rights, fear of authorities, and limited English proficiency, are easily exploited by unscrupulous employers, according to the Seton Hall report.

Even if they are aware of the legal recourse available to them, advocates say, abuse claims can be time-consuming to pursue and difficult to win.

One of the reasons wage theft among day laborers is so hard to track down is that often, workers don’t know the names of contractors and business owners.

“No one knows any one,” said Jorge Artiga, 47, of Morristown, a day laborer who belongs to the Wind of the Spirit, an immigrant resource center based in Morristown.

Wind of the Spirit receives an average of 15 wage-theft complaints every month, said co-founder Diana Mejia. The most common complaint Mejia hears is of employers who pay some, but not all, of the wages owed, always promising to pay the rest later. Workers stay on the job while the amount of their unpaid wages accumulates.

“It (wage theft) is a very big problem,” said Jose Guillermo Angeles Mendez, 40, of Lakewood.

Both Mendez and Garcia were part of a group who spoke Wednesday evening at the Lakewood office of New Labor, an advocacy group for immigrant workers that also operates in New Brunswick.

The five men spoke of their experiences as day laborers, their stories translated from Spanish to English by New Labor volunteer Paulina Romo.

“You can only hope that you’ll be paid because if you’re not, it’s going to have an impact,” said Mendez, who has worked in construction and landscaping.

Going without pay can mean no money for food or rent. It can also mean, for those day laborers who immigrated here, tensions with those back home.

Mendez has four children living in Mexico. When he can, he sends money to them. But when the money is not forthcoming, problems arise.

“If they (employers) don’t pay us, the family thinks we’re making all this money and we’re not sending it,” said Mendez.

Of course, not all those who hire day laborers are looking to take advantage of them. Probably 90 percent of employers treat their workers well, said Rita Dentino, director of the group Casa Freehold.

“The problem is, that 10 percent can make really big problems,” said Dentino.

The New Jersey Landscape Contractors Association does not condone the hiring of day laborers, said Michael Kukol, chairman of the association’s legislative committee.

Kukol, who owns a landscaping company in Wyckoff, will not hire workers who cannot prove they can work in this country legally, and his fellow contractors are encouraged to do the same, he said.

But, he acknowledges, there are employers who are willing to exploit undocumented day laborers.

“They are easy picking,” said Kukol.

Bringing those employers to account is not always easy.

The Seton Hall study outlines a handful of avenues open to day laborers but notes that each comes with limitations.

The federal Department of Labor’s Wage and Hour Division has offered to help day laborers negotiate payments. It only has jurisdiction when employees are engaged in interstate commerce, however, while workers and community organizers say that most of the employers who hire day laborers are small, independent contractors involved in local projects.

The state Department of Labor, meanwhile, says it investigates every wage and hour complaint it receives. However, the agency does not have the resources necessary to handle the volume of complaints it receives.

New Jersey has a criminal statute for wage theft but, the Seton Hall report states, it is not a sufficient deterrent and is rarely used.

Finally, workers may file complaints in small claims court. But even when successful, it can be difficult for workers to actually recover any money if they do not have financial information about their employers — such as employers’ bank accounts or other assets — that can be used to file a lien.

For example, Dentino successfully helped two immigrant workers in 2006 win small claims complaints against a local landscaping and tree service company for $2,910 in owed wages.

Getting the money took another year and a half, however, after the landscaper claimed he had no way to pay the men. By that point, the men had already returned to Mexico, their home country, Dentino said.

When the official channels fail, advocates say, one tactic has been especially successful in getting employers to pay up: public embarrassment.

Mejia and her fellow advocates in Morristown have at times turned to the media to draw attention to worker abuses. They have tried to hurt contractors’ reputations by informing homeowners when they hire contractors who refuse to pay their employees. They have also staged protests of unscrupulous employers.

“It’s not a big protest, but we make sure they see us,” said Mejia.

Perhaps most important, whenever Mejia’s organization pursues a wage-theft complaint, the worker involved is required to attend classes educating them on their rights as employees.

The goal, Mejia said, is to ensure workers don’t land themselves in the same predicament again.

Workers need to know how they can combat these abuses, Samuel Alonso, 31, a laborer from Lakewood, said Wednesday.

“This about bosses that don’t pay is a plague,” Alonso said. “We have to fight it.”


Federal judge orders release of document metadata

by Christine Beckett | Reporters Committee for Freedom of the Press

For the first time, store a federal court has ruled that metadata — information related to the history, tracking or management of an electronic document — must be released if requested under the Freedom of Information Act. A federal judge in New York City made the ruling Monday in National Day Laborer Organizing Network v. Immigration and Customs Enforcement Agency.

National Day Laborer Organizing Network requested numerous records in electronic form from the U.S. Immigration and Customs Enforcement Agency. After significant delay, the agency provided the records, but did so by putting the them into a large, unsearchable PDF that lacked distinction within and lacked metadata. The court held that this was unacceptable.

The two major issues in this case were the format the records were provided in and the lack of metadata, such as file dates, names, attachment data and other identifying information. Regarding the first issue, the court agreed with the plaintiff’s claim that the format was completely unusable because the more than 3,000 pages were not searchable and not defined — there was no way to discern the beginning and end of individual records. The court repeatedly criticized the government for its refusal to provide the records in a usable form, at one point referring to the government’s claims as “lame.”

Sunita Patel, attorney for the Center for Constitutional Rights, co-counsel and co-plaintiff in the suit, said that metadata is essential when receiving an electronic record. “The metadata shows that the government is not hiding anything when they provide an electronic record. You want to make sure you have everything.” Patel insisted that, without metadata, there is no way for a requester to ensure that key parts of records are not being withheld from an electronic record.

“It goes to the heart of FOIA,” Patel said. “You can’t allow the use of an electronic format to prevent [requesters] from getting information.”

While agreeing that metadata should be specifically asked for, Judge Shira Scheindlin held that because the National Day Laborer Organizing Network asked for the electronic records in their “native format” — meaning in their original electronic format, which maintains metadata — that was sufficient to include the metadata in the request. As a result, the court held that the Immigration and Customs Enforcement Agency must provide the requested records in a usable, electronic format, including the metadata.

“Metadata maintained by the agency as a part of an electronic record is presumptively producible under FOIA, unless the agency demonstrates that such metadata is not ‘readily producible,’” the court held.

Sheindlin also chastised the Immigration and Customs Enforcement Agency for providing the records in an unsearchable format, with different types of records lumped together with no discernable organization, and for providing only PDF images of records that are stored electronically. The court held that these files should be given to the plaintiffs in separate files.

“The Government would not tolerate such a production when it is a receiving party, and it should not be permitted to make such a production when it is a producing party. Thus, it is no longer acceptable for any party, including the government, to produce a significant collection of static images of [electronically stored information],” the court said.

At several points, the court noted that the government also violated discovery rules, which dictate that the record holder cannot alter the form of a record in a way that makes it “more difficult or burdensome for the requesting party to use the information efficiently.” While no court has held that discovery rules govern FOIA, the court said in a footnote that the “fundamental goal underlying both . . . is the same” and “common sense dictates that parties incorporate the spirit, if not the letter, of the discovery rules in the course of FOIA litigation.”

In reaching its conclusion, the court recognized, based on caselaw and legal definitions of metadata, that “it is well accepted, if not indisputable, that metadata is generally considered to be an integral part of an electronic record.” However, the Freedom of Information Act does not specifically address metadata and “[n]o federal court has yet recognized that metadata is part of a public record,” the court said.

While the court held that there should be a presumption that metadata is producible under FOIA, it conceded that not all metadata may fall under FOIA’s “readily producible” standard, noting that, in some circumstances, producing all metadata could be too burdensome for an agency. The court said the determination of what metadata must be produced should be conducted on a case-by-case basis, and depend upon the type of electronic record requested and how the agency maintains its records.

The court, while at times openly scolding the the Immigration and Customs Enforcement Agency’s behavior, did not save its ire entirely for the government. “[O]nce again, this Court is required to rule on an e-discovery issue that could have been avoided had the parties had the good sense to ‘meet and confer,’ ‘cooperate’ and generally make every effort to ‘communicate’ as to the form in which [electronically stored information] would be produced.”

“[L]awyers are all too ready to point the finger at the courts . . . for increasing the expense of litigation, but that expense could be greatly diminished if lawyers met their own obligations . . . This can only be achieved through cooperation and communication,” the court continued.

It is unclear if the U.S. Attorney will appeal the ruling. When asked, the office said it “does not comment on internal decisions.”

Copyright 2011 The Reporters Committee for Freedom of the Press.

Credit: Leslie Perales

Council Votes to Revise Street Solicitation Ordinance

The revised version of the ordinance means solicitation of goods, check services, handbills, view etc. cannot occur in the vehicular roadway, median and gutter area.
By Leslie Perales | 6:00am

Credit: Leslie Perales

Credit: Leslie Perales

The Herndon Town Council voted 4-3 to pass a revised version of the June 8, 2010 street solicitation ordinance on Tuesday night.

The original street solicitation ordinance, passed last June, prohibited people from soliciting goods and services in public highways, including the grassy strip between the property and the sidewalk, the sidewalk, utility strip, curb and gutter, roadway and median.

The revised version passed last night reduces the enforcement area to the road itself and the median, said Town Attorney Richard Kaufman. The ordinance will no longer apply to sidewalks, utility or grassy strips.

Kaufman said from a legal standpoint he didn’t believe any action by the town council was necessary, however the new ordinance would serve as a legislative decision by the town council. He said from the outset the ordinance was legal, appropriate and defensible.

The new ordinance changes the terminology from highway to roadway, as the two terms have different definitions associated with them, Kaufman said. Another change is that the ordinance applies to all streets equally, including streets with on street parking, though it exempts private streets, he said.

Other changes included taking out language that suggested what enforcers of the ordinance should look as an act of soliciting, and a note addressing that events such as Herndon Festival are allowed because of town permits and are unaffected by the ordinance, Kaufman said.

Councilwoman Grace Wolf asked if it would be allowed for someone to stand in the gutter area of a roadway on the street level, something she found to be dangerous. Town Manager Art Anselene said the interpretation of the ordinance from a policing perspective includes the gutter area where cars may travel.

Before allowing any comments from the audience, Mayor Steve DeBenedittis reminded the crowd that everyone in attendance was an adult and they should act as such and show respect for one another. He said it would also help the meeting move along quicker.

Herndon resident Ruth Tatlock said the town attorney did a good job on the revised ordinance and it was very thorough. She said it left in necessary safety items and she can accept the ordinance as presented.

Lisa Hernandez, of Herndon, said she feels the revised resolution is a good, positive first step but doesn’t cover everything. She said she felt the original ordinance specified and excluded members of the community. She said she would still like to see the ordinance rescinded entirely.

Dennis Baughan said there was nothing controversial about the original ordinance. He said selling items on and near roadways has always been something that’s been regulated, and the enabling legislation was OK’d in the House of Delegates and passed unanimously in the Virginia Senate.

Herndon resident and former town council member Dave Kirby said he has all the faith in the world in the town’s attorney, and that when Kaufman says the ordinance is constitutionally correct he believes him. He said he saw no reason at all to change the ordinance, but believes many were misinformed about what the ordinance really addressed.

Vice Mayor Lisa Merkel made a motion to pass the revised ordinance with a suggestion for a wording change from Kaufman. “It’s been said over and over in these chambers that this council needs to move on from this and I could not agree more,” she said.

Merkel said the issue has been brought up at nearly every public hearing in the past seven months and she wanted to address it now so the council could close the issue for good. She said after Tuesday night she had no plans to address the ordinance, 287(g) or other day labor issues again.

She said she would do what she believed was best for the town, without consideration for individuals or outside groups such as Virginia New Majority, the Alexandria-based organization that rallied residents to petition the town on the original ordinance.

Councilwoman Sheila Olem said she felt the revised ordinance was a compromise. She said she wasn’t happy with the first ordinance when it was passed and felt it was overkill. She said she didn’t think it provided a very “hometown feel” that area groups couldn’t sell Girl Scout cookies on the sidewalk.

Councilman Jasbinder Singh said during the last six months much has been said about the ordinance. He said many people feel discriminated and threatened by the original ordinance and he felt the town took the language too far. He said there is no demonstrated proof that there is a traffic safety issue and the ordinance was simply trying to address the day labor issue.

Councilman Bill Tirrell said he is sick of people throwing out the race card every time there’s a disagreement. He said just because he disagrees doesn’t mean he is a racist, and the day labor and other social issues aren’t relevant to the ordinance. He said he believes VNM has made the ordinance into a day labor issue when that’s not the case.

Tirrell said Herndon is warm and welcoming to residents here legally and they are wanted. He said if residents are here illegally “this should be a cold harbor for you. Go home. This is not your country.” He said they should let their governments care for them the way they want the United States government to care for them.

“No matter how it’s packaged it’s a concession to Virginia New Majority,” Tirrell said. He said no matter how much some council members try to disassociate themselves from VNM, public perception lead by VNM would still claim to control them. He said it’s unfortunate because he doesn’t believe that to be true.

Tirrell said for him the issue is simply about public safety, just like other distractions while driving, such as putting on makeup, eating, texting or talking on a cell phone. “Distraction is distraction no matter how worthy the cause, and distraction can kill,” he said.

Councilwoman Connie Hutchinson said a lot of the evening’s debate was about definitions of roadways, sidewalks, curb and gutter. She said all the definitions can be hard to understand, but suggested an amendment to the ordinance that would include the utility strip between the sidewalk and curb and gutter.

Wolf said if it were up to her she’d ban all activity other than driving on roads and keeping pedestrians on sidewalks, but that’s unconstitutional. She said her biggest interest was in keeping drivers and pedestrians safe. She said she doesn’t care what color someone’s skin is, they shouldn’t be in the roadway.

Hutchinson said just because the town has not had an accident in recent years that involved a pedestrian and a car does not mean there is no potential, and the ordinance is preventative. She said she didn’t support changing the ordinance, but would support including the utility strip as part of the roadway where solicitations would be banned.

The council first voted on the amendment to include the utility strip in the ordinance as a place where solicitations could not take place. The motion failed 3-4.

Mayor DeBenedittis then made a motion to deny the ordinance, which also failed 3-4. The Mayor then made a motion to defer the ordinance to April of 2012, which also failed 3-4. Before a final vote, DeBenedittis commented on his thoughts on the issue.

“The intent of this is and always was public safety,” he said. “We would not be discussing this, we would not have put it on tonight’s agenda if it weren’t for an outside group of agitators who came to our town to divide. And to do so and to get folks out, I believe they had to mislead people. I think it’s a mistake to change this ordinance at this time.”

Finally shortly before 1 a.m., the main motion to pass the revised ordinance, with the amendment suggested by Kaufman was passed 4-3. Tirrell asked for a roll call vote. Voting against the passage of the revised ordinance was Tirrell, Hutchinson and DeBenedittis. Voting for the revised ordinance was Olem, Singh, Wolf and Merkel.


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