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About Street roots. (Portland, OR) 1998-current | View Entire Issue (Oct. 28, 2016)
Street Roots • Oct. 28-Nov. 3, 2016 News Page 7 WORKERS, from page 5 nonprofit for a few months before getting hired at Voz in Portland, where he’s been working for about a year. Salgado pointed out that if a worker steals from their boss, they are likely to get the book thrown at them, possibly facing arrest and criminal prosecution. But flip it around, and employers in Oregon can steal thousands of dollars from a single employee in the form of unpaid wages and never see the inside of a courtroom or jail cell. While BOLT has referred cases to district attorneys for prosecution, it’s rare. BOLI representatives said the agency has referred a restaurant owner and wreath maker for criminal prosecution but were unable to provide Street Roots with any examples of construction contractors or companies that had been criminally prosecuted. “Maybe if there was more enforcement and tougher penalties, maybe this wouldn’t happen,” Salgado said. Kate Suisman, a volunteer attorney at Voz’s twice-weekly wage theft clinic and recent hire at Northwest Workers Justice Project, said it’s common that people who come to her with wage theft issues have also experienced other forms of mistreatment. “Some of it’s quite racist,” she said, explaining workers have reported to her that employers have told them that because they are immigrants, they don’t have any rights and can’t do anything about not getting paid. Among the many wage claim cases she’s helped workers submit, Suisman said she’s rarely seen BOLI issue any penalty to employers for failing to pay their workers, or for failing to pay them on time. “Wage theft pays for employers,” she said. We asked BOLI Commissioner Brad Avakian why his agency doesn’t go after more employers with fines and criminal charges. “The most important thing is to make sure that the workers get paid because the workers and their families need the money,” said Avakian, a candidate for Oregon secretary of state. “There are times, especially when you’re dealing with a small business, that we want to make sure that the levying of the fine doesn’t break the business to the point where we can’t collect the wages.” When it comes to criminal charges, he said, “we have occasionally passed on information to district attorneys - I don’t know that there’s been an appetite in order to criminally prosecute.” Adam Gibbs, spokesman for the Multnomah County District Attorney’s Office, said he asked around the property crime unit and prosecutors could only think of one time during the past 10 years that a wage claim case had been referred to them from BOLI. No one could remember the details of the case. Gibbs said while the the DA’s office takes theft and fraud referrals from quite a few state agencies, “they’re not giving them to us, so we don’t see them.” He said that after Street Roots inquired about wage theft cases, someone from his office reached out to BOLI “to reaffirm that we will be happy to take and review any case referred.” But as Dale at Northwest Workers Justice Project points out, it’s hard to collect stolen wages from an employer who’s behind bars. would work in an at-will state. ENDING WAGE THEFT “It’s a very high burden for employees that have been treated unfairly to meet so I think that its a fair discussion to have,” Avakian said. “There have been proposals like thaf made before, they have failed at the Legislature. It would be a very difficult thing to do with the law.” A coalition of nearly 40 organizations ted by the Northwest Workers Justice Project has been working since the 2013 legislative session to pass new laws to combat wage theft and retaliation in Segon. Northwest Workers Justice Project Executive Director Michael Dale explained the Coalition to Step Wage Theft was responsible for legislation during the 2016 26 percent penalty on wage thieves: e coalition would add a non-negotiable 20 percent penalty to the total amount erf wages owed to workers in wage claims handled by BOLI. Because nonprofits theft advocate for immigrants have stepped up to teach workers about their rights and to help them file wage complaints with BOU and foe Department of Labor, this 20 percent He believed the teeth were taken out erf the bill, however, when provisions that would have allowed for enforcement were gmoved. penalty would go into a fund that would be distributed to frese community groups, by ¡ BOLL in the form of grants. “Basically what the Legislature did was pass what the business lobby wanted on Bis issue,” he said. Redefining independent contractors, lien laws and attorney fee obligations: It’s expected the business lobby will strongly oppose the coasts 2017 bills »weft. Combating retaliation against workers who make claims: This bill would make it easier for an employee to win a retaliation case because ft shifts foe burden of proof to the employer If an employer fires an employee within a certain period of time after the employee filed a wage claim, the law would assume that foe firing was in retaliation, and the employer would have to prove otherwise. That period of time is still being determined but will likely fall in the6G-to 90-day range. This tactic is similar to a recommendation the Environmental Justice Task Force has considered making to foe governor in light of abuses of immigrant farm and forestry jorkers. But Oregon is an at-will state, meaning an employer can fire an employee for any reason, or for no reason at But this bill would also require an | . written reason for their termination upon Tins bill covers a lot of ground. For one, it would shift foe property thata lien is placed on in a wage theft claim from the property that was being worked on - which typically does not belong to the employer who owes workers money - to the property of the guilty party. ft would also change the law so that employees who sue employers and lose ♦ are no longer required to pay their employer’s attorney fees But the most notable provision of this bill is foat it would redefine what it means to be an independent contractor. “I’ve had cases here where everyone on a construction site was an independent contractor,” Date said. “Of course the effect of being an independent contractor is you don’t have wage protections, you don’t have minimum wage, you don’t have time and a half, deductions from your pay protected. You don’t get workers’ comp, you’re not paying into the Social Security system, you don’t have, therefore, disability coverage, and on and on ft goes You can’t even unionize, because since you’re not an employee, you’d be price fixing and violating the anti request, and therefore preventthe employer from being able to change his or. her story at a later date. trust laws.” We asked Oregon’s Bureau of Labor and Industry commissioner, Brad Ávakfon, if an employee of the company, which could have far-reading implications in foe he thought shifting the burden bf proof emerging gig economy. A Senate bill passed in the 2016 legislative session made it a Class C felony for employers to knowingly violate the prevailing-wage law, however it’s yet to be seen whether it will send more employers to criminal court Wage theft is perpetuated by a Catch 22. Punish employers for stealing from their workers, and the workers might never get paid. But do nothing to punish employers, and there is no deterrent to keep them from stealing from their workers. Further exacerbating the problem, undocumented workers who fear the loss of WORKER EXPLOITATION Oregon’s immigrant forestry workers have little recourse to pervasive exploitation and labor violations. Read Street Roots' investigative series, Timber's Fallen, at news.streetroots. org/timbersfallen Another bill being brought forth by foe short session that now requires employers to provide workers with detail«! pay stubs and optes of payroll records upon ■quest. employer to provide foe employee with RELATED COVERAGE: He said this bill would define anyone who is conducting foe work of a company as their job often don’t complain when they get shorted on their paycheck, and BOLI and U.S. Labor Department investigations are largely complaint driven. “I think BOLI is put in an impossible situation where they really don’t have the resources they need,” Dale said. Carpenter union representatives agreed. “The problem is there’s no enforcement,” Sheckler said. “The union has to do the enforcement of workers that are being ripped off.” BOLI has only 11 wage and hour investigators for the entire state. Three of the investigators are new additions, added to conduct proactive investigations into problem industries, however they are currently focused on seafood processing compliance. Avakian was hesitant to admit his agency was short on resources. When asked about cuts, he said, “We are able to do very efficient, very quick and thorough investigations in the construction industry.” But Vbz and other immigrants rights advocacy groups have stepped up, conducting outreach to vulnerable workers, teaching them about their rights and helping them file wage complaints with agencies such as BOLI and the U.S. Department of Labor. n Sept. 23, Sanchez shared Becerra’s experience of getting fired for attending a union meeting with a room overflowing with Latino workers at the carpenters union headquarters on East Burnside Street. It was the largest turnout since they began their outreach efforts, with about 45 men in attendance, many for the first time. Many, like Becerra, had bosses who wouldn’t approve if they knew they were engaging with the union. Before sharing Becerra’s story, Sanchez asked the room, in Spanish, how many had ever worked for “Timber Tech.” Nine raised their hands. He told them that Becerra had a good job now, with benefits and fair pay - a job the union helped him secure after he was fired. A handful of local contractors that had subcontracted wood framing are now coming to the union to find workers they hire directly instead. Taking away this business is hurting non-union subcontractors, Sheckler said. “They already have these guys working for them under a sub (contractor), and now we can say to these contractors, ‘Hey, we got guys if you want to self-perform it, but you’re going to have to pay the union wage.’” A representative from Andersen Construction was at the September meeting to do just that. He told the men around the table that he had good-paying jobs waiting for them. Sanchez told the room full of laborers that the union would teach them how to fill out applications and have their back if they get ripped off. He told them that they work hard and they deserve to be paid. As men walked out of the conference room at the meeting’s end, feelings of optimism among them seemed contagious. “This is our work. This is what we do,” Sanchez said. “Back in the day, I wish somebody would have helped me. I didn’t know better; I was not educated - I just didn’t have the information, and I allowed my employer to take food out of my kids’ mouths. That’s not right, and that’s why I take it so personally.” O emily@streetroots. org
