By Pamela Constable
Washington Post Staff Writer
Tuesday, July 8, 2008
It was a relatively small amount, $720, that José was owed for 72 hours of construction work in the District. Most immigrant day laborers, fleeced by a casual employer and unaware they had any legal recourse, would have swallowed their anger and let the matter drop.
José, 45, who has family to feed in El Salvador, was determined to fight back. He had kept a record of the painting, drywalling and other jobs he had done for a small contractor. He went to a church, which found him a team of lawyers, who took his case to court.
Although few immigrant day laborers realize it, they have the same right as any worker to sue employers for unpaid back wages, even if they are here illegally. In recent months, advocacy groups in the Washington region have been helping such workers file administrative claims and lawsuits, and in some cases they have won.
For José, whose last name is being withheld because he is not in the United States legally, a District superior court judge ruled in February that his claim was more credible than his employer's.
But then the judge hesitated, said one of José's attorneys. Assuming José was an illegal immigrant, the judge wondered aloud whether such a worker was protected by local labor laws, whether he paid taxes and whether he should be entitled to back wages.
Attorney Laura Varela said she and her colleagues quickly objected. They had brought copies of federal statutes and case law showing that all workers in the United States are entitled to recover unpaid wages, regardless of immigration status.
Satisfied, the judge awarded José his money.
It was a rare victory for a group of workers who, advocates said, are cheated out of pay far more often than others and have greater difficulty winning back pay. Officials of the National Day Labor Organizing Network in Los Angeles said a survey of day-laborer sites in 25 states found that half of all workers had been underpaid or not paid at least once.
In the Washington region, hundreds of Hispanic immigrants survive at the legal and economic margins of society, flagging down work vans and hoping to earn a few dollars with no questions asked. Such workers are often easy to fleece, with checks that bounce or threats to call immigration authorities.
Although some of the workers are in the United States legally, they might not understand their rights or might fear being deported if they complain. By raising labor complaints, illegal workers could be vulnerable to a check of their immigration status.
"Day laborers are the most vulnerable because of the informal environment of their work," said Varela, who works for the Washington Lawyers' Committee for Civil Rights and Urban Affairs in the District. "They have no contract or records. They may not know where they worked or who they worked for. They may be too scared to step into a courtroom or too worried about missing more work."
The legal situation of such immigrant laborers is often confusing and contradictory. Under federal law, it is illegal to hire a worker who does not have permission to be in the United States. In the past year, workplace raids by federal immigration agents across the Washington region have led to the arrests of several hundred illegal immigrants and to legal action against some employers.
Under the federal Fair Labor Standards Act, all workers are entitled to be paid minimum wage and overtime for work performed. The law does not discuss the issue of immigration status. Many jurisdictions, including the District and Maryland, have laws or court rulings that clearly extend wage and hour rights to immigrants, regardless of legal status. These laws are rarely enforced, however, and few cases reach court.
There is scant public sympathy for the grievances of illegal immigrants, and some law firms are reluctant to provide representation. Workers can file complaints with state offices that handle wage and hour disputes, but advocates said few workers know this or would venture into a government building to find out.
In recent interviews, many Hispanic day laborers in the District, Maryland and Virginia told stories of contractors who vanished after repeatedly promising to pay them, or paid them with checks that could not be cashed.
Several nonprofit groups recently increased efforts to help them collect. Ulises Ramirez, a manager at the Workers and Tenants Committee in Falls Church, said a Salvadoran was owed more than $8,000 by a home remodeler. After Ramirez gave a legal-sounding letter to the owner of the remodeling business, he agreed to a gradual payment plan.
In the District, several organizers visited a parking lot outside a Home Depot in Northeast one morning last week. Dozens of Latino men gathered around as the organizers explained how to file a detailed wage complaint with the D.C. government. One man unfolded a handwritten record of his jobs for a remodeler in April.
"I wrote down all my facts, but I don't know how to find the boss," said the man, Moises, who claimed he was never paid $739 for 82 hours of work. "He lives somewhere in Maryland, but his cell never answers."
In court, contractors often claim that a worker is lying or mistaken about the agreed wages, or that the worker is an independent contractor, which means he brings his tools, hires helpers and has the right to earn a profit but not to sue for back wages. Some business owners who hire day laborers say others take unfair advantage of the workers.
"It is not right," said Charles Hudson, a contractor in Falls Church who hires workers through Ramirez's office. "Some of them may be here illegally, but they come from poor countries and they bust their backs to make a living. They are good men, and they are making my company grow. Where they are born is an accident."
For laborers who join crews on larger jobs, it is somewhat easier to legally pursue unpaid wages. In one case, three area nonprofit groups helped some Hispanic workers file a class-action suit against Verizon Communications, claiming that the workers had not received all their pay after digging ditches for fiber-optic cable in the Washington area. Verizon has claimed the responsibility lies with the subcontractors who hired the workers.
Varela's law group also helped seven Hispanic workers sue for back wages from a painting company in Frederick. A federal judge ruled in the workers' favor in January, finding that immigration status was "irrelevant" to the case. The judge added that when employers "circumvent the labor laws as to undocumented aliens," it creates an "unacceptable economic incentive" to hire them at lower wages than U.S. residents or citizens.
Although such rulings bolster the laborers' cause, advocates said it is difficult to collect the workers' money. Often, Varela said, contractors do not appear in court. A judge might order that the wages be paid, but then nothing happens.
"We worked long and hard digging the ditches," said Francisco Luna, 43, a Mexican worker in the Verizon case. "They owed me almost $1,000, but the checks had insufficient funds. People are needy, and the employers have all the power. We only ask them to have a heart, and to respect the work we do."
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