Wage theft still on the menu in the restaurant industry

Plate of Money

By Lisa Mak

Making the headlines this week was a landmark $4 million backpay and compliance settlement for 280 current and former workers at the popular Yank Sing restaurant in San Francisco.  Last summer, a group of Yank Sing employees, with the help of the Chinese Progressive Association and the Asian Law Caucus, complained that the owners of Yank Sing engaged in a slew of labor violations, including theft of wages and tips, failure to pay minimum wages and overtime, and denying workers their meal and rest breaks.  The violations, according to California Labor Commissioner Julie Su, were “pretty blatant.”

Unfortunately, employee wage theft and labor violations are very common in the restaurant industry.  For example, workers brought claims last year against a Los Angeles restaurant, Izakaya Fu-ga, for wage theft, failure to provide breaks, and retaliation against workers who asserted their rights.  An announcement is also expected soon regarding a settlement with restaurants in the El Mercadito complex in the Los Angeles Boyle Heights neighborhood that will pay $220,000 in back wages to workers and provide improved sick and vacation leave.

The Yank Sing crackdown is a good reminder that people serving us our food often make too little to put food on their own table.  Aljazeera recently covered the issue in its “Fault Lines” series, highlighting the prevalence of wage theft in the restaurant industry.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.

We need “peace” officers! It’s time for crisis intervention training

?????????????????????????????????????????????????????????????????????????????????In a recent article published on the popular online magazine, Truthout, CELA VOICE blogger and police misconduct lawyer, Jim DeSimone, explains why police officers need to be properly trained in order to avoid unnecessary use of force against individuals, especially those who have disabilities.  In most jobs and occupations, safety training is provided to avoid injury to employees and customers.  When employers intentionally fail to provide proper safety policies and training to avoid injury, or ignore obvious accommodations to an individual employee or customer, the companies or government entities can be held liable for substantial sums to compensate the injured party.  Jim shows how inadequate police training has led to unnecessary death or injury and the resulting costs to the families involved as well as taxpayers.

Read the full article here:  “We Need “Peace” Officers! It’s Time for Crisis Intervention Training(more…)

Despite losses in Congress, workers gain ground in state and local elections

B1sIEyQIEAAA4AT

By Mariko Yoshihara

Although the Republicans had a sizable victory in last night’s midterm elections, and even picked up a few seats in the California state legislature, workers in California and across the U.S. scored some major victories.  The Republican gains in Congress will surely spell doom for Democrat-led efforts to advance workers’ rights at the federal level, like banning forced arbitration, raising the federal minimum wage, and providing paid sick days to workers, but as we saw last night, states, cities, and counties are moving ahead on their own to serve the needs of workers.

For example, four states last night — Alaska, Arkansas, Nebraska and South Dakota — all voted to increase their state minimum wage.  Proving that the minimum wage is not a partisan issue, voters in these four deeply conservative states approved the measures by sizable margins.  Two-thirds of voters in Arkansas, Walmart’s home state, approved a $2.25 wage increase to set a $8.50 per hour minimum.  Alaska will increase its minimum wage to $9.75 over the next 14 months and Nebraska will raise its minimum wage to $9 by January 2016.  South Dakota approved a minimum wage increase to $8.50 next year that will increase annually to match inflation.  With Tuesday’s victories, 17 states have now opted to raise the minimum wage since just last year.

Two cities in California also voted to raise their local minimum wage.  Oakland will boost its minimum wage to $12.25 next year and San Francisco will gradually increase its minimum wage to $15 by 2018.  Eureka was the only minimum wage measure to fail in last night’s election.  Meanwhile, Illinois and several counties in Wisconsin pushed the issue forward by approving non-binding referendums calling for minimum wage boosts.  According to Economic Policy Institute, an estimated 680,000 low-wage workers will be getting a raise based on last night’s results.

Workers also scored major wins for paid sick days last night.  Voters in Massachusetts and the cities of Oakland, California and Montclair and Trenton, New Jersey approved measures to provide paid time off for workers who are sick or need to care for family members.  In Massachusetts, workers in companies with over 10 employees can earn up to to five paid sick days a year, and those who work for smaller companies will be eligible for unpaid sick days.  In Montclair and Trenton, New Jersey, workers who provide food service, child care or home health care, or who work for companies with 10 or more employees, can earn up to 5 days of paid sick leave each year. All other employees have access to three paid sick days.  In Oakland, California, workers in companies with more than 10 workers can take up to nine sick days a year, and, in smaller companies, up to five paid sick days.  Oakland’s new law will provide up to three times as many paid sick days as the new California law that was passed this year, which provides only 3 days of paid sick days.  After last night’s results, three U.S. states and sixteen cities have now passed paid sick days legislation, including two states and ten cities in this year alone.

The growing efforts by state and local governments to move this kind of legislation forward reflects the electorate’s dissatisfaction and frustration with a Congress that fails to act.  However, despite the widespread support of these efforts by voters on both sides of the aisle, as we saw last night, much of the country still sides with GOP candidates who are fundamentally opposed to these exact issues.  Will Republican lawmakers from Alaska, Arkansas, Nebraska and South Dakota, now support a national minimum wage increase?  Probably not.  Unfortunately, politics is much more than just casting votes based on the views and needs of your constituents.

Now that Republicans control both houses of Congress, it is almost certain that the national workers’ rights agenda will continue to go nowhere.  Until we see a change in power in Congress or the Republicans decide to listen to the majority of their constituents, we will have to count on state and local governments to work past partisan gridlock to address the needs of workers.

Love shouldn’t hurt or get you fired

banner-dvam2014-6

By Lisa Mak

Today is the last day of Domestic Violence Awareness Month, so let’s take a moment to reflect on the prevalence of domestic violence in our country.  The press has no shortage of coverage on the issue when celebrities are involved, such as the recent leak of a video showing NFL player Ray Rice punching his then-fiancée in an elevator.  However, the press largely ignores the real-world challenges faced by domestic violence victims.  One challenge is maintaining employment while trying to get out of an abusive relationship.  In most states, a domestic violence victim can still be fired due to the abuser’s conduct, based on an employer’s misguided safety or productivity concerns.

This is one of the shocking things I learned during my two years as a volunteer counselor on a domestic violence hotline.  During that time, I counseled many victims who had different reasons for hesitating to leave the abusive relationship.  Some victims were still in love with their abuser, or were too afraid of the violent aftermath if they tried to leave.  Some cited a lack of a support network, as their partner had isolated them from family and friends.  Still others were financially dependent on their abuser, who prevented them from working or had sabotaged every job they ever had.

In 2013, Carie Charlesworth, a teacher in San Diego, brought national attention to the economic vulnerability of domestic violence victims when she was fired after her abusive ex-husband invaded her workplace and placed the school on lockdown.  Even though Charlesworth had a restraining order against her ex and had called the police, the school still fired her for safety concerns – essentially punishing her and her 4 children for her partner’s crime by taking away her livelihood.

As a result, Charlesworth became a strong proponent of SB 400, a new law protecting domestic violence victims from job termination.  Enacted in 2013 and effective this year, SB 400 changed Labor Code sections 230 and 230.1 to prohibit an employer from firing or discriminating against an employee based on his or her known status as a victim of domestic violence, sexual assault, or stalking.  The law also requires employers to provide reasonable safety accommodations for victims at the workplace, such as changing a phone number or relocating an employee’s desk.

With this new law, California joined 6 other states – Connecticut, Hawaii, Illinois, New York, Oregon, and Rhode Island – to specifically protect DV victims from employment discrimination.  But that means that in 43 other states, there is still no protection or recourse for victims who are fired because of their status.  That is appalling, considering that on average, approximately 20 people per minute in the U.S. are victims of physical violence by an intimate partner.  About 1 in 4 women will experience some form of domestic violence in her lifetime.

For many victims, maintaining stable employment is critical for escaping the abusive relationship and for supporting themselves after leaving their partner.  A 2012 study reported that 74 percent of women nationwide stayed with an abusive partner for a longer time due to economic reasons.  In California, studies have shown that nearly 40 percent of DV survivors were fired or feared termination due to domestic violence.  Laws like SB 400 protect victims who are often in a very vulnerable financial position.  We need such laws in every state.

Some states do allow victims to take time off work for DV-related issues, such as obtaining a restraining order or testifying in court.  But those laws are woefully inadequate.  What good is it when an employee has a restraining order in hand but no job to go back to?  How will she support herself while trying to be financially independent from her abuser?

Even without such laws, companies would be well-served by implementing policies to protect such vulnerable employees.  Intimate partner violence is not just a “family” problem – it’s also a business issue.  Employees who suffer from domestic violence or workplace harassment by their partner understandably may miss more work and be less productive.  If the abuser visits the workplace, this could also be extremely disruptive to a company’s operations.  Yet surprisingly, a 2006 study found that over 70 percent of U.S. workplaces did not have a formal program or policy addressing workplace violence.  Even in those private sector workplaces that did have such programs, less than half addressed DV issues.

Firing victims of domestic violence does more than take away the financial security that can allow victims to leave their abuser.  It also perpetuates the stigma of abuse and discourages other victims from reporting their experiences.  It re-victimizes them and takes away the last shred of self-worth they may have.

It takes an incredible amount of courage for DV victims to exit their abusive relationships.  Let’s not make it harder by putting their employment at risk too.

 

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.

More Episodes of Clueless in Silicon Valley:  What does the reaction say about us?

By Supreeta Sampath

The spotlight shined again this month on employer cluelessness in Silicon Valley, first with Microsoft’s new CEO telling women they’re better off waiting for karma than pushing for raises and then with the news that one multi-million dollar tech company was paying workers in Rupees.

Early this month came the disturbing comment about women and pay raises by Microsoft CEO, Satya Nadella, speaking (ironically) at the Grace Hopper Celebration of Women in Computing Conference.  Nadella’s mind-boggling advice to young women seeking advice on how to ask for a raise was to keep quiet – “knowing and having faith that the system will give you the right raises as you go along.”  He further opined that it’s “good karma” not to ask for a raise.  Immediately after the talk, Nadella recanted in a tweet –

Nadella tweet

That same day he issued a letter of apology to Microsoft workers telling them if they think they deserve a raise, just ask.

Then last week, EFI, a publicly-traded digital technology company was caught by the U.S. Department of Labor paying eight employees in Rupees.  That’s right, Rupees, the currency of India.  Apparently, the Fremont-based multi-million-dollar company believed that because it had flown the Indian employees from India to California for a project, it was allowed to pay the employees in Rupees, at a rate equivalent to $1.21 per hour and make them work 120 hours per week.  The consequence for this travesty?  Other than paying $40,000 in wages owed, EFI was fined a mere $3,500 by the DOL. What was the company’s response?  Let’s just say there were no apologies, simply feigned ignorance of the law.

The reaction to these events reveals a ‘sign of the times’ and the power of media to focus (or not) on work place equality.

The public and media decry of Nadella’s comments are ubiquitous.  If one types in any combination of “Nadella”, “Pay” and “Women” into any search engine, the results are prolific. Ranging from tweets of dismay and disgust, to thoughtful editorial pieces criticizing Nadella in major news magazines, the country passionately leaped into its discussion about gender equality in the work place. Perhaps most notable is the equal abundance of pieces (including in the New York Times) spinning Nadella’s blunder into a positive and needed opportunity to continue discussions about the gender divide.

In stark contrast to the national reaction over the Nadella debacle, you will be hard pressed to find any significant media coverage over EFI’s unlawful conduct.  Media attention was short-lived and confined to local stations.  I found only one article condemning the behavior and guffawing at the paltry DOL fine.  So where are the bloggers, tweeters and national media commentators decrying wage theft and worker exploitation?  Why is there a lack of any meaningful response expressing shame and disgust over this blatant example of corporate greed? And has anyone asked whether EFI would have paid British workers in Pounds (with a $1.61 exchange rate) if they had been slogging away in California for the company?  Why is no one furious that a company reporting close to $200 million in revenue in its last financial quarter got away with a $3500 fine?

Perhaps with recent political victories like the Lily Ledbetter Fair Pay Act and Cheryl Sanberg exhorting women to “Lean In” – it is more socially acceptable and sexy to debate the merits of fair pay and gender equality in the work place than to focus on the unrelenting reality of labor exploitation.  Perhaps Microsoft is cleverer and has a better Communications Department assisting in rehabilitating Nadella and Microsoft’s reputation through widespread “positive spin” pieces?  Perhaps it is all of this.

Don’t get me wrong, as a woman and a workers’ rights advocate, I am thrilled that Nadella’s comments have put needed attention on pay and gender equality in the workplace.  But as a woman and worker’s rights advocate, it’s clear to me that the bigger lesson can be learned from the different ways these two employer “mishaps” have been reported by the media and digested by the masses.

Minimum wage, wage theft and worker exploitation may not be as alluring as gender equality in the year 2014, but they are equally vital to our national economy and collective moral conscience.

 

Supreeta Sampath

About Supreeta Sampath

Supreeta Sampath is the founder of The Sampath Law Firm located in San Francisco, California. For over a decade, her legal career has been dedicated to serving the needs of those who have been denied justice. Ms. Sampath has extensive experience representing workers in employment discrimination cases on account of race, national origin, religion, gender, disability, age, sexual harassment, retaliation as well as cases involving labor code violations. From 2011-2014 she has been named a Rising Star in the field of Labor and Employment by Super Lawyers Magazine.

The Civil Rights Act – looking ahead

By Marvin Krakow

When we look back, few of us would want to be associated with opposition to our country’s efforts to end discrimination.  Yet, today, as we did then, we all too quickly close our eyes to the mistreatment of others, and all too readily harden our hearts against the suffering of those we call “other”.  As we try to imagine the challenges and opportunities of the next fifty years, an appreciation of how far we have come may help us choose progress and compassion over misplaced caution and over “all deliberate speed”.   We have a chance to think big.

Looking Ahead — Part 2

We can draw a two part lesson from the changes which followed the 1964 Civil Rights Act.

First, we have learned to appreciate diversity and inclusion.  People once excluded by law and by custom, when given a chance, contribute to our communities.  They become our co-workers, our business partners, our friends, our loved ones. We share celebrations, food, holidays, life’s passages.

??????????????????????????????????????????????????????????????????????????????????????????????????????

Our work becomes more productive.  Our art, our writing, our music, the entirety of human expressive effort becomes more creative.  Our lives are enriched beyond measure.

??????????????????????????????????????????????????????????????????????????????????????

Second, we have learned that we often fail to see or to appreciate discrimination inherent in our daily lives.  In the mid-twentieth century, we failed to appreciate the extent to which our laws and customs abused and marginalized women, minorities, members of the LGBT community, immigrants, people with physical and mental challenges, and older people.

Occupy_Wall_Street_spreads_to_PortlandToday, we fail to recognize the ways in which we abuse and marginalize people without money, people with limited education, and people whose religions we do not understand.  We fail to recognize the ways in which we deny the humanity of working men and women  and degrade their lives.  What we don’t see, we can’t acknowledge: the more subtle and hidden forms that traditional discrimination now takes.

Our work is not done.  Imagine how our communities might look fifty years from now at the one hundredth anniversary of the Civil Rights Act.  Imagining the future gives us a sense of the struggles ahead, but at the same time, it acknowledges changes already underway, and it provides hope to sustain our efforts.  Here is my personal wish list for 2064:

  1. Employers must have good cause before firing a worker.  Job security will be a fundamental right for all.
  2. Countries participating in the global economy will develop and enforce international standards for treatment of working men and women.  Participating countries will require that goods and services sold in their domestic markets be produced in safe facilities, by workers who are paid a living wage,  enough to provide food, clothing, shelter, medical care, and education for their families.
  3. The countries of the world will develop and enforce international standards for environmentally sustainable production.  No business will be allowed to operate without systems and processes to prevent environmental damage.  Participating countries will no longer permit the degradation of land, water, and air as a part of doing business.
  4. The right to free movement of all people among the countries of the world will be guaranteed in the same way that the right to free movement of all people among the states of the United States is guaranteed by our Constitution. How we treat a person will not depend on where he or she was born.  We will recognize that laws which restrict immigrants are fundamentally unfair.  We will provide sufficient support and services to fully integrate newcomers into our communities.
  5. In the United States, we will expand Social Security to develop an effective and financially sound workplace benefit system, including unemployment stipends, paid medical and family leave, disability insurance and retirement pensions which support a decent life.
  6. Both here and abroad, we will find ways to reduce inequality of income and wealth, making sure that all people can earn enough to provide a decent life for themselves and for their families.
  7. Workplaces will follow the model of union grievances, and will provide informal, effective, and speedy dispute resolution mechanisms to address claims of unfair treatment, and to serve as a check on unilateral management actions.
  8. We will reaffirm and guarantee the rights of working people and consumers to present discrimination and workplace fairness claims to juries.
  9. Workplaces will provide support for family obligations, including decent childcare, and paid leave for medical and newborn care.
  10. Successful businesses will develop mechanisms to involve workers in decisions affecting the operation of the workplace.  In the unionized sector of the economy, an expansion of the mandatory subjects of collective bargaining may support that change.  In every workplace, we will protect working men and women who speak out about issues at work, safety, pay, discrimination, illegal conduct.   Even in the absence of legal requirements, the economic advantages realized by fully engaging working men and women will provide a competitive advantage to businesses which seize the initiative.
  11. We will surrender the illusion of superiority.  The mistreatment of others, including all forms of discrimination and retaliation, rests on the often unacknowledged assumption that the person in power is better than the person oppressed.  It is possible, however, to affirm our own needs and desires without denigrating the humanity of others.
  12. This item left blank.  It will be filled in by the struggles of ordinary people.  It will amaze us!
Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

Our overly-litigious society: The justice system is out of control 1

????????????????????????????????????????????????????????????????????????????????????????????????????????????

By Craig Byrnes

I’m a trial lawyer.  When people find out what I do for a living, I usually get an earful. Too many lawsuits, they say. The verdicts are too high, they tell me.

The first thing I learned about being a good lawyer is that preparation is key. So I go to parties ready to hear this kind of stuff. Here’s what I say to these folks.

Let’s Play “Who Have You Sued?”

I usually start off with a little party game I like to call, “Who Have You Sued?” It goes like this: I ask the person, “Have you ever sued anyone, or been sued?” The next question is, “Do you know anyone who’s been sued, or who’s sued anyone?”

I feel completely safe asking these questions, because no one’s ever answered yes to either question yet.

Try to imagine the meaning of that: in what so many of us think as a society that sues too much, you probably have never sued anyone or been sued, and you probably don’t even know anyone who has. Within a full degree of separation — which is a lot of people, when you think about it — you have probably had no contact with the court system.

As for our being an “overly litigious society,” did you know that, from 2009 – 2010, lawsuits in California actually *decreased* 11.6%?  As far as California goes, a survey of 29 states and D.C. showed that, per capita, California was 28th out of 30 in lawsuits filed.

In fact, of those lawsuits filed in 17 states surveyed (California was not part of this study), 61% of them were for breach of contract.  You can’t blame those cases on greedy plaintiffs sticking it to the poor companies since breach of contract cases usually involve corporations suing each other. Tort cases, involving personal injury and wrongful death — the sorts of things you hear about people suing for — were about 6% of the courts’ dockets in 2009.

So just to make the point here clear — the number of lawsuits is trending down, not up, and per capita, and California is toward the bottom of the list when it comes to lawsuits being filed.

Your own experience tells you that lawsuits are not out of control, because you’ve never sued anyone and you don’t know anyone who has. The data says that lawsuits are not out of control — they’re actually trending down.

We need to ask ourselves: what kind of power do insurance companies and large corporations have that they can make us believe things that run counter even to our own experience and the facts we know to be true?

But What About the Big “Hot Coffee” Verdict?

But how about all those out-of-control verdicts? How about the lady who spilled hot coffee in her lap and got 150 million dollars?

Litigants who win big verdicts are sort of like people who win the lottery. You’ve heard it happens, but you’ve never met anyone it’s happened to.
There are a lot of reasons for that.

Part of it is that what really happens would never make the news. It’s too boring. Did you know that the median verdict in California personal injury cases is about $115,000? But the average verdict reported by the news is about $3.5 million. That gives everyone listening a false impression about what’s really happening out there.

The other thing the news doesn’t tell you is that there are a lot of protections for corporations and insurance companies built into the system. So everyone has heard of the McDonald’s coffee case, in which the lady spilled coffee on herself and got $2.86 million. We don’t have to talk too much about the facts of the case: the plaintiff received 3rd degree burns on her genitals, had to be hospitalized for eight days, needed skin grafts and two years of medical treatment, and internal memos from McDonald’s showed that they knew the coffee was physically, dangerously hot, but served it that way anyway.

And while you never heard any of those facts on the news, here’s what you also didn’t hear: the judge took away the jury’s verdict, and replaced it with his own: $640,000. Did you know that judges could do that? That they can just take away a jury’s verdict, and replace it with whatever they darn well please? Yes, they can, and it happened here. Then the parties settled, reportedly for something less than $600,000.

Burned genitals, skin grafts, two years of medical treatment, and a company that knew what it was doing and did it anyway. And it took her 2 1/2 years just to get to court.

Sometimes, the facts just don’t make good stories. But they are still the facts. Despite what our own experiences and the facts tell us, the constant drumbeat of “frivolous lawsuits” and “overly litigious society” keeps legislators dancing to the insurance companies’ rhythm.

I know that this blog post’s title was “Our Overly-Litigious Society: The Justice System is Out of Control,” and that’s not at all what the evidence shows. Sometimes, you just can’t believe the headlines.

An earlier version of this blog post was published on the author’s Workplace Law blog.

 

CELA VOICE Guest Blogger

About Our Guest Bloggers

Our guest bloggers include members of CELA and other employee advocates. Email us if you are interested in guest blogging.

The Civil Rights Act – looking back

By Marvin Krakow

The Civil Rights Act of 1964 guaranteed equal treatment in the workplace, in public facilities, and in public accommodations, regardless of race, religion, ethnicity or sex.  Equality was not the norm in 1964.  Remembering where we started may provide hope and inspiration for the next fifty years.

This is the first of a two part posting: first, a history we have lived, second, imagining and planning for the future.

Looking Back – Part 1

http://upload.wikimedia.org/wikipedia/en/f/ff/Little_Rock_Desegregation_1957.jpg

Little Rock Desegregation 1957” by Will Counts. Licensed under Fair use via Wikipedia.

By beginning with a look at the United States of the late 1950’s and early 1960’s, we can better appreciate the magnitude of the changes we have experienced.  There and then were the conditions which the Civil Rights Act was meant to address.  The United States Supreme Court struck down segregated schools and the doctrine of “separate but equal” public facilities, only in 1954.  A year later, the Court called for dismantling segregated public schools with “all deliberate speed.”   In practice, communities and states intent on resisting the required changes made much of “deliberate” at the expense of “speed.”

In 1960, as part of the Wilmington, Delaware school district’s long delayed preparation for desegregation, I, with a few classmates, had a chance to visit the black school about six blocks from our own.  The only apparent equal part was the architectural plan.  The two schools had the same floor plans.  Even as an eleven year old, I could see that the black school had almost no books, that the sandstone bricks were crumbling, the toilets broken and foul.  By contrast, my own school had well maintained granite, a fully stocked library, plenty of classroom supplies and materials, clean and functioning lavatories.

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

The lack of adequate facilities and the open lie of “separate but equal” were but the tip of the iceberg of de jure segregation.  Our country had opportunities only for a select few.  We did not tolerate differences.  We murdered those who challenged the assigned order.   State sponsored and state enforced racial separation — combined with political disenfranchisement, and an economic and social caste system — was violent, brutal, and unremitting.   In the Summer of 1964, the world witnessed the terrorism supporting American segregation in the murders of James Earl Chaney, Andrew Goodman, and Michael Schwerner.

Lynchings, counted in the thousands, were carried out over generations, not only in the South, but throughout the country.  “Race riots”, actually pogroms and massacres of entire communities, terrorized people of color.  The ferocity of racial as well as ethnic violence characterized and defined American society in the first half of the twentieth century.

SVHO2004-0366

“Student and Faculty Civil Rights Rally, San Jose State College, February 28, 1964″ by Moore, John. Courtesy of San José State University, Special Collections and Archives

Pervasive discrimination was not limited to African Americans.  Universities had quotas for Jews, Catholics, and other minorities.  Large corporations, law firms, hospitals would not consider ethnic minorities for hire.  Women had limited rights to own property.   Gays were invisible. In quantitative terms, almost two-thirds of our country’s people suffered discrimination.  Freedom and opportunity were reserved for members of a small and privileged class consisting almost exclusively of economically fortunate, white, Anglo-Saxon, Protestant men.    The norm, the life experienced by most people, included closed doors, hatred, persecution, and violence.

When we hear the stories of individuals we can begin to understand the extent and severity of discrimination in the mid-twentieth century United States.  From my own family stories: a young woman limited to secretarial work for men who were far less talented than she, a high school girl learning from her admired father that his field of work was closed to all women, a man who died unable to tell his family of his love for another human being, a woman hospitalized for “hysteria” as she came to terms with her love of another woman, an entire family whose parents, grandparents, aunts and uncles, and cousins were slaughtered after the United States refused them safe haven from Nazi genocide.

There are few in my generation, coming of age in the 1960’s, who do not know such stories.  The details may vary. The story tellers may be Asian, Hispanic, African American, Irish, Native American. Regardless of one’s origins, America of the early and middle twentieth century held up the torch of liberty and opportunity while unapologetically shutting doors and crushing hopes.

Discrimination and violence strike deeply.  At its core, discrimination is a disregard and disrespect of another person’s humanity.  It is an expression of contempt and hatred.  When we suffer discrimination, the pain stays with us for years.  It is felt for generations.  When we engage in discrimination, when we tolerate contempt and hatred, and when we acquiesce in violence, we rend the fabric of our communities.  We corrupt our souls.

O’Connor, Sotomayor, Ginsburg, and Kagan” by Steve Petteway. Licensed under Public domain via Wikimedia Commons.

The Civil Rights Act of 1964, at the time of its passage, represented our country’s highest aspirations in the face of social and political realities far different than our Constitution’s promises.  The ongoing success of that legislation is all around us. Women and minorities have entered the workplace.  Many have risen to positions of prominence.  People with physical and emotional challenges are emerging from the shadows of dependence and isolation.  We are beginning to understand the waste of human potential and the pain we inflict in denying and demonizing love and sexuality.  We have made room for a true diversity of spiritual beliefs and practices.

But we can’t take our progress for granted.  As we try to imagine the challenges and opportunities of the next fifty years, an appreciation of how far we have come may help us choose compassion over misplaced caution and progress over the next iteration of “all deliberate speed.”

We now have a chance to be on the right side of history.  In my next post, I will discuss how we might get there.

 

 

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

No free pass to discriminate against immigrant workers:  Salas v. Sierra Chemical Co.

By Megan Beaman and Kevin Kish

Low-wage workers—regardless of immigration status—shoulder more than their fair share of workplace violations, including unpaid wages, unsafe working conditions, and discrimination and harassment.  Immigrant low-wage workers are particularly vulnerable—working under constant fear that if they exercise basic workplace rights, they will suffer retaliation that could result in the separation of their families; loss of homes and property; or return to violence or extreme poverty in their home countries.

New Image93 blurredThis fear of retaliation is based in fact.  We as advocates have seen it happen time and time again—and it overwhelmingly leads to workers staying silent, leaving employers without even a slap on the wrist when they break the law.

Scofflaw employers do not and will not stop violating the law if they are not held accountable for their violations to all workers.  Any other type of piecemeal enforcement, or lack of enforcement, encourages employers to hire vulnerable undocumented workers, disregard labor laws as basic as the minimum wage, and then fire them when they complain – all to the economic disadvantage of employers who do follow the law.

Earlier this summer, the California Supreme Court in the Salas v. Sierra Chemical Company case agreed, deciding that companies that hire undocumented workers (knowingly or not) do not get a free pass to discriminate against them.

In that case, Mr. Salas sued his former employer, Sierra Chemical Company, for failing to bring him back to work after he injured himself and claimed workers’ compensation benefits. Mr. Salas alleged the company retaliated against him for filing his claim and discriminated against him because of his injury. But a jury never got the chance to decide whether he was right. The company claimed that because Mr. Salas was not authorized to work in the U.S. in the first place, the company shouldn’t be liable for failing to hire him back. A lower court agreed and dismissed the case (giving the company a free pass to discriminate in the bargain).

The California Supreme Court said not so fast. On the one hand, the law says that people without work authorization shouldn’t be working. But on the other hand, the law says that all workers should be protected from discrimination.

In a careful decision, the California Supreme court balanced these two concerns.  It allowed Mr. Salas to take his case to a jury, finding that a company can be liable for discrimination even against undocumented employees.  At the same time, the court held that undocumented employees cannot seek a court to be hired back by the company that has discriminated against them.

This decision demonstrates an understanding of the reality of the California workplace, which is  increasingly made up of workers of all immigration statuses, including green card holders and naturalized U.S. citizens.  It also includes 1.85 million undocumented workers, who constitute nearly 10% of the total workforce.

Against this backdrop, the Supreme Court confirmed that employers cannot violate the law—by discriminating or otherwise—and then later be immunized from liability for those violations. The court recognized that leaving undocumented workers without the protection of the law would actually give employers a strong incentive to “look the other way” when hiring and then turn around and use their immigration status to ultimately exploit them.  That would be bad news for employers who actually honor their obligations to treat workers fairly and legally when it comes to hiring, pay, and non-discrimination in the workforce.

Mr. Salas will now have the chance to take his case to a jury, who will decide whether he wins or loses.  But the Salas decision is a solid win for all law-abiding Californians – employees and employers alike.

 

Megan Beaman

About Megan Beaman

Megan Beaman is a community-based attorney who roots her work in the notion that all people deserve access to justice, and who understands the larger struggles for immigrant and worker justice in California and nationwide. Beaman’s practice is founded on her years of advocacy and activism in working class and immigrant communities, and tends to reflect the predominate needs of those communities, including many cases of discrimination, harassment, unpaid wages, immigration, substandard housing, and other civil rights violations. The client communities Beaman most often represents are overwhelmingly Latino and Spanish-speaking. Beaman also works and volunteers in a number of other community capacities, including as a coordinator for the Eastern Coachella Valley Neighborhoods Action Team.

California has collected $31 million under the Private Attorneys General Act

????????????????????????????????????????????????????????????????????????????????

By Christian Schreiber

Last week, I posted that the Labor and Workforce Development Agency (LWDA) had collected more than $24 million in penalties from lawsuits brought under the Private Attorneys General Act of 2004 (PAGA) through April 10, 2013.

Though the data is not quite complete (collection numbers are missing for three-plus months since April 2013), it does show that the LWDA has collected another $6,343,884 in penalties (approximately $488,000/month).  Thus, the total number of penalties collected since PAGA was enacted is just shy of $31 million.  That works out to an average of about $17,000 for each of the approximately 1,800 cases allocating PAGA penalties to the LWDA.

There are any number of ways to interpret this data. Among the most interesting aspects of the data is the sharp increase in PAGA penalties collected in the last year or so.  Almost half (45%) of all of the reported “PAGA cases” since 2004 are paid out from July 2013 to this August, as well as a quarter of all penalties (26%). No doubt this corresponds to an increase in the use of PAGA allegations in wage-and-hour class and collective actions, as practitioners have become more familiar with how to use PAGA in their cases.

Still, many important aspects of the law remain unsettled, and guidance from the Court of Appeal has been sparse. If the trend demonstrated by this data continues, however, the courts will not remain on the sidelines for very much longer.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

%d bloggers like this: