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

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.

New California law protects immigrant workers from threat of deportation for exercising employment rights 1

New California law protects immigrant workers from threat of deportation for exercising employment rights

By Michael Marsh

Did you know that, nearly one in ten workers in California is an undocumented immigrant? That a majority of undocumented immigrants work in hard-labor, low-wage occupations where health and safety laws are often ignored? That twenty nine percent of California workers killed in industrial accidents are immigrants?

These sobering facts are among those reported in a recent study by the National Employment Law Project, which also found that immigrant workers are often cheated out of their wages. Seventy six percent of those surveyed worked “off the clock” without pay, and eighty five percent did not receive overtime.

How can this be? Unscrupulous employers, who ignore workers’ undocumented status when hiring, use the threat of deportation to intimidate employees from exercising basic workplace rights. This cut-throat behavior not only hurts their employees, it also adversely affects the economic well-being of their law-abiding competitors and of the citizens and lawful permanent residents whose wages and working conditions spiral downward in response.

Late last week, Governor Brown signed into law a bill sponsored by Senator Darrell Steinberg. The new law makes it illegal for an employer to report or threaten to report the immigration or citizenship status of any worker or member of a worker’s family who complains about unsafe working conditions, refusal to pay earned wages, sexual harassment or other illegal employment practices. The law expansively defines “family member” to cover not only immediate family, but also grandparents, aunts, uncles, nieces, nephews and cousins, from such threats.

Penalties for violation are substantial, and may include fines of up to $10,000 per incident, as well as suspension or loss of one’s business license. Furthermore, attorneys who report the immigration status of parties, witnesses or family members of employees involved in an employment rights lawsuit, risk having their law licenses suspended or being disbarred.

With the signing of this law, Governor Brown has made it clear that knowingly hiring undocumented workers, benefiting from the fruit of their labors, and threatening them with deportation for asserting California employment rights will no longer be tolerated. It’s about time.

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

Rape in the fields goes unpunished 1

Rape in the fields goes unpunished
Raspberry Workers in Oxnard

© Copyright CRLA, Inc.

By Michael Marsh

Recent Congressional hearings have focused much-needed attention on the problem of sexual assault against women in the U.S. armed forces. San Diegans are demanding that their mayor resign because of sexual harassment allegations. But where is the public outrage against sexual harassment and assault suffered by women who work in our fields?

To be a female farmworker today is to face the sort of sexual harassment and assault that secretaries and other female office workers faced in the 1950s and ’60s. Supervisors create and maintain hostile work environments. Sexual banter, inappropriate touching, and hostility toward women are commonplace.

As an attorney for farmworkers, I am frustrated by how little progress we have made in resolving this problem. Years ago, one of my first clients was a farmworker who suffered six months of daily comments by her supervisor about her body. On numerous occasions, he attempted to coerce her into having sex with him by threatening to fire her or have her deported. She lived in constant fear. Finally, finding her alone at the edge of a field one evening, her supervisor raped her.

Ironically, the worker, whom I’ll call Guadalupe, did not come to my office to report the sexual assault. She came with a family law question. Did she have to list the “father’s” name on the birth certificate? The assault had resulted in a pregnancy. Not knowing any of this, I congratulated her on the pregnancy. Only then did she break down in tears and explain that her supervisor had raped her. When I asked her why she had not reported the rape to me earlier, she said she was embarrassed and, in any case, did not think there was anything that could be done about it.

Little has changed. According to one report, hundreds, if not thousands, of farmworker women have been compelled to have sex with their supervisors to get or keep jobs, and many others suffer a constant barrage of sexual comments, groping, and propositions for sex. Another survey found that 90 percent of farmworker women reported that sexual harassment is a major problem in the workplace. A 2012 report by Human Rights Watch states that in most instances the perpetrators of such harassment are supervisors, foremen, and farm labor contractors.

Last year, I settled the case of a farmworker who alleged she was raped by her supervisor in a truck at the side of a field at 5 a.m. before the rest of the crew had arrived. The worker, whom I’ll call Maria, had accepted a ride from him because the company van was full.

Farmworker women endure many difficulties to support their families, and threats by farmers to call immigration authorities on some complaining workers are implicit and explicit. The power imbalance is extreme. Workers understand that supervisors have absolute power to discipline and fire workers. And farmworker women often lack information and support to challenge bad behavior.

The root of the problem is that our society has dehumanized farmworkers. When city dwellers speed by farmworkers on the highways of California, they do not see people working upright, standing on two feet, eyes focused on the horizon. They see bundles packaged against the sun and wind, hunched over as if on all fours, with eyes focused toward the ground. In short, they see animals, not human beings.

Focus groups of California registered voters organized by the Rural Community Assistance Corporation indicate that citizens understand that living and working conditions for farmworkers are extremely substandard. But these same citizens justify the conditions, arguing that farmworkers chose their own lot or, conversely, that these conditions must be an improvement from conditions in Mexico. In any case, so many farmworkers are “illegals,” so what should they expect?

We need to change society’s view of farmworkers. Schoolchildren should learn about the contributions farmworkers make to our economy and society and the problems farmworkers face. An effective media campaign—funded by the agricultural industry and the government—should be launched that educates the public and humanizes farmworkers in the public eye. And while some news organizations—such as the Center for Investigative Reporting, Univision, and PBS/Frontline—have done commendable work on the sexual harassment of farmworker women, more needs to be reported.

Laws must also be enforced.

Protection requires speed, but, right now in California, the federal Equal Employment Opportunity Commission (EEOC) takes a year or more to assign an investigator to a case and another one to three years to complete an investigation. During those long waits for justice, witnesses disappear, especially in a migrant labor market, making difficult cases nearly impossible to prove. Harassers become emboldened.

California employers are required to train supervisors about sexual harassment every two years and to give all employees information about sexual harassment every year. But many agricultural employers fail to provide any meaningful training whatsoever. In Guadalupe’s case, her employer gave workers a sexual harassment information sheet that was so poorly translated into Spanish that it stated “if you report sexual harassment to your supervisor, you will be retaliated against.”

Maria reported her attacker to the local sheriff, but most women do not report the assaults to authorities. Even when they do, it can lead nowhere. Maria’s attacker was interviewed by deputies but never charged with a crime. The silver lining was that Maria’s victimization and her cooperation with law enforcement formed the basis for her successful application for a “U” visa, which is granted by U.S. Citizenship and Immigration Services to victims of certain violent crimes who collaborate with authorities to investigate or prosecute those crimes. As knowledge of “U” visas becomes more widespread among the farmworker community, I expect that more farmworker women will come forward to report these crimes.

Our office works closely with a rape crisis organization, medical personnel, and local law enforcement. But in many areas, rape crisis organizations are non-existent or underfunded. Lawyers win settlements for victims but do little to address the underlying causes of the problem. Rural law enforcement officers are not as empathetic to the complaints of assault victims as many of their urban counterparts. All this must change.

Farmworker women may not wear our country’s uniform or carry a weapon into battle, but the work they perform is just as important. They deserve equal protection against sexual harassment and assault.

This article originally appeared at www.zocalopublicsquare.org.  

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

Farm work with a serving of chlorpyrifos-methyl

Farm work with a serving of chlorpyrifos-methyl

3 women

By Michael Marsh

Several weeks ago, I argued in this blogspace that the best reason for consumers to buy organic vegetables is to protect farmworkers and their families from pesticides. A new report from Farmworker Justice highlights how pesticides are poisoning farmworkers and what can be done about it.

I have a farmworker client, Marcelo, who exemplifies the problems mentioned in the report. He applied pesticides, many of them quite toxic to humans. He was trained by his employer in the most perfunctory fashion. Marcelo was supposedly trained to handle, mix and apply ninety-six different pesticides, each with very different properties and requirements. The training lasted one hour. Or about thirty-seven seconds for each pesticide, some of which have tongue-twister names that would be difficult to pronounce in the allotted time, such as 1,3-dichloropropene, or chlorpyrifos-methyl.

Marcelo was told that he needed to change the filters in his respirator when he could smell or taste the pesticides he was applying. Only two problems with that. First, by the time a worker can smell or taste pesticides through a respirator, it is too late. The worker is already improperly exposed to toxins. And second, Marcelo’s employer never provided him with replacement filters. Instead, he was fired for complaining about the lack of filters and other pesticide violations.

While Marcelo’s employer paid dearly for its mistreatment of him, many more farmworkers are exposed and ignored. Fortunately, recent news coverage is bringing this problem to the attention of the public, and the Environmental Protection Agency is developing more stringent regulations that should offer greater protections to farmworkers and their families.

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

“Rape in the Fields” documentary chronicles sexual violence against women farmworkers

By Michael Marsh

I was born and raised just a few miles north of our country’s border with Mexico. As a teenager I often wondered what my life would have been like had I been born just a few miles south, which led me to become an attorney who assists low wage, Spanish-speaking employees in California.

Through my work I have learned firsthand that sexual harassment and assault against farmworker women, documented in “Cultivating Fear,” a 2012 Human Rights Watch report,  transcends borders. Every week approximately two women come to our small office in Salinas to complain about sexual harassment. This season we’ve already had three farmworker women report that they were sexually assaulted by their supervisors at work.

The shocking prevalence of sexual abuse against farmworkers is the subject of a new Frontline documentary, “Rape in the Fields.”  It  airs Tuesday June 25 on PBS and June 29 on Univision.

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

Eat healthy, for you and the farmworker who harvested your food 1

By Michael Marsh

Many of us buy organic vegetables and products when they’re available. We seek a healthy diet, and don’t want to expose ourselves or our children to residues from toxic pesticides which have been shown to build-up in our bodies.

But the principal reason that I buy organic vegetables isn’t to protect my family, it’s to protect farmworkers and their families. If I fear that eating minute residues of pesticides will damage my health, imagine what life must be like for a farmworker.

As an attorney for farmworkers, I am aware of the many problems they face–low pay, long work hours, back-breaking work, little respect, fear of deportation, and numerous health risks. Add to that pesticides. And not pesticides in the quantities that we consumers see. I’m talking pesticides in bulk!

In a recent opinion piece I wrote for Salinas’ daily paper, I discussed the dangerous pesticides facing farmworkers and farmworker communities today.  To give you just two examples, in Monterey County where I live, approximately 8 million pounds of pesticides are applied each year. Half of that amount is extremely toxic fumigants like chloropicrin and methyl bromide, which has been banned internationally but is still used in California. But that’s just a beginning. In Tulare county, approximately 25 million pounds of pesticides are used each year. That’s 55 pounds for each person living in the county!

Farmworkers work in fields that have been sprayed with pesticides and they work near fields that are being sprayed with pesticides. Then they go home to houses located near fields that have been treated with pesticides. And they bring pesticide residues home to their children in the form of dust and soil carried on their boots and clothes. Finally, unable to afford organic vegetables, they eat the same commercial foods with pesticide residues that the average consumer eats.

State and federal agencies do little to study, let alone protect farmworkers from the long term impact of these pesticides. There is a ray of hope, however. CHAMACOS, run by the Center for Environmental Research and Children’s Health at U.C. Berkeley, is midway in a long-term study of the impacts of pesticides on farmworker women and their children. CHAMACOS has already shown a correlation between pesticide exposure and low birth weight and slowed child development, and they continue to study changes in practices that could reduce exposure to pesticides in farmworkers and their children.

California law requires that every employer provide employees with a safe and healthy workplace. Farmwork is no exception. For all of us who do not grow the food we eat, we owe it to farmworkers to oppose the use of dangerous pesticides such as chloropicrin.

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

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