Kicking them while they’re down: Bill to treat former substance abusers as independent contractors is wrong

Kicking them while they’re down: Bill to treat former substance abusers as independent contractors is wrong

Sacramento State Capitol of California Building

By Sami N. Khadder

A new effort is underway to deprive a certain class of workers of the most basic benefits and protections of employment.

Last month, Assemblymember Marie Waldron (R-San Diego) introduced AB 500, which would allow employers to hire workers who have successfully completed a drug rehabilitation program following conviction of a non-violent felony as independent contractors rather than employees for a period of two years.

The targets of this bill are workers for whom steady and fair employment is a means to rebuild a life and to prevent a relapse of the ravages of addiction. AB 500 is a cynical bill that would codify discrimination and perpetuate mistreatment of this already vulnerable group.

For starters, the language of the bill violates existing federal anti-discrimination law. The Americans with Disabilities Act  considers those who have received treatment for drug or alcohol abuse as qualified individuals with a disability who are entitled to reasonable accommodation. Contrary to the express purpose of the ADA, AB 500 stigmatizes individuals who have completed a substance abuse rehabilitation program by denying them, for a period of two years, the legal protections normally offered to employees in California. Stigmatizing people with disabilities is what gave rise to the disability rights movement to begin with.

Codifying second class status for workers with a substance abuse history is bad enough, but the effect of the bill is even more insidious. Under California law, a person who provides services for another person or entity is presumed to be an employee of that person or entity – as opposed to an independent contractor. The distinction is meaningful. Independent contractors are not entitled to the protections of the California Labor Code, which means they have no minimum wage or overtime protections and no entitlement to meal and rest breaks. Independent contractors are also exempted from the laws prohibiting discrimination or retaliation in the workplace, and they are not entitled to unemployment insurance or Social Security contributions. The bill would also allow employers to avoid the cost of carrying workers’ compensation insurance, leaving independent contractors unprotected in the event of a workplace injury.

Employers often complain that the cost of providing these benefits to their workers has grown too high and some may look with favor at the proposed economic windfall — being able to hire rehabilitated drug offenders for two years for less than the minimum wage, without having to provide overtime pay, workers’ compensation insurance or protections from unlawful discrimination.  But these benefits are essential to providing a fair and safe work environment for California workers. Without these protections, the State would invariably end up shouldering much of the costs, while the employers would reap all the benefits.

Some advocates of the bill may believe that the bill encourages employers to give people with a history of substance abuse an opportunity to work their way into full employment status.  But AB 500 would require applicants to disclose to potential employers that they have been convicted of a crime. Such disclosure is currently prohibited under certain circumstances.  More importantly, there is ample evidence that qualified applicants who disclose their criminal history are just as likely to be denied employment altogether, a result directly contrary to the intended result.

Others may take a harder line toward former substance abusers, believing that second class status in the workplace is appropriate because substance abusers should suffer the consequences of their poor decisions. But how does stripping anti-discrimination protections, overtime, and workers’ compensation achieve any policy goal related to rehabilitation or substance abuse prevention?

What is undeniable is that AB 500 targets a vulnerable constituency. And if the move to strip their rights is successful, it could embolden employers to seek further erosions of the benefits and protections of employees. Who would be next?  The long-term unemployed, veterans, the homeless? For those already struggling to become productive members of society, our goal should be to eliminate obstacles, not create them.

Sami Khadder

About Sami Khadder

Sami N. Khadder is the founder of the Khadder Law Firm. He has a decade of litigation experience, with the majority of his career dedicated to fighting for the rights of employees and individuals. Mr. Khadder began his career as an intellectual property defense attorney, but soon realized that the pursuit of justice on behalf of those who need it most was a far more gratifying use of his legal education and experience. Mr. Khadder looks forward to continuing the fight for justice.

Will the “real” employer please stand up? The consequences of the global shift to subcontracting, franchising, and outsourcing

Will the “real” employer please stand up? The consequences of the global shift to subcontracting, franchising, and outsourcing

By Anne Richardson

A fundamental change has taken place in the American workplace, and we are only now beginning to realize just how monumental it is.

A new book, The Fissured Workplace: Why Work Became So Bad for So Many and What Can be Done About It, by David Weil, makes the case that in every corner of the employment world, companies are increasingly shedding their employees, while maintaining control over the ultimate product or services to be provided under the “lead” company’s logo and brand. Beginning with peripheral services such as janitorial and security, and gradually including ever more central services, such as receptionists, truckers, and even lawyers, large employers are deliberately subcontracting out their work.

warehouse

Here’s how it works: A member of a loading dock crew is paid by one company, which is in turn compensated by another company, for the number of trucks loaded. That company, Schneider Logistics, manages distribution centers for Wal-Mart. Wal-Mart sets the price, time requirements, and performance standards that are followed by Schneider, which in turn uses those standards to structure its contracts with its subcontractors.

Why do they do it? Employers can reduce costs by pushing many of the responsibilities connected to being the employer of record down the chain to someone else. Yet by controlling the quality and price of their goods and services, they do not lose their reputations and the goodwill of their brands.

But should lead companies be allowed to have it both ways? Should they be permitted to control the production, delivery, and cost of goods and services, without sustaining any liability for the manner in which their contractors provide them? To take a real world example, if a company like Wal-Mart sets a price that is so low that the only way for suppliers to meet it is by underpaying their employees, isn’t that really Wal-Mart’s responsibility?

This new “fissuring” model has drastic consequences for employees who have been forced to trade in traditional jobs at a lead company, with benefits and a pension plan, for part-time temporary positions with no benefits. Pushing responsibilities down the chain often means that the direct employer is less well capitalized and less capable of maintaining wage and hour standards, or enforcing health and safety rules. Since the company on top sets the price, often as low as the market will possibly bear, the company on the bottom is forced to cut to the bone. Many of the subcontractors are small businesses that go under, and then reemerge as a different company, which results in there being no responsible party  to foot the bill when legitimate claims are made.

Fissuring also negatively affects the health and safety of   the broader public. Weil argues that a significant contributing factor of the devastating environmental oil spill caused by the BP Deepwater Horizon accident in 2009 was the extent of BP’s use of contractors. In order to shield itself from liability by maintaining less control over its subcontractors, BP did not sufficiently oversee the safety component of the operation. Other authors have similarly noted the increase of injuries and fatalities that have accompanied the rise of contracting in, for example, coal mining, construction, and trucking, among others.

To be sure, there are some who benefit from the practice. The third consequence of “fissuring” is to shift the surplus generated by businesses away from the workforce and to investors. This helps to explain why the operative trend in the American workforce is the widening income gap between the rich and the working poor. The gap between the wealthy and the poor is at a hundred year high.  For example, in 1965, the average CEO made about 20 times what the average worker made at any given company. By 2013, the ratio had grown to approximately 331 to 1. What’s fascinating is that a recent study found that not only did people worldwide grossly underestimate the ratio of CEO to worker pay, but that people across all backgrounds preferred a smaller pay gap.

Weil, who was appointed the Administrator of the Wage and Hour Division of the United States Department of Labor in May 2014, argues that since “[t]he modern employment relationship bears little resemblance to that assumed in our core workplace regulations,” laws and judicial decisions need to adapt current rules about workplaces to the realities of the modern world.

In every corner of the American workforce, the pressures to cut costs and improve the investor’s return have resulted in a worsened standard for the middle-class worker, as well as a worsened standard of health and safety. What can be done about it? Stay tuned for my next post.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

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

We need

?????????????????????????????????????????????????????????????????????????????????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…)

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.

It’s time to clean up the Los Angeles garment industry’s dirty secret 3

It’s time to clean up the Los Angeles garment industry’s dirty secret

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On March 25, 1911, 146 garment workers died in the Triangle Shirtwaist Factory fire in Manhattan. Today, we know our clothes are still often sewn in lethal conditions in foreign factories.  Last year’s disastrous Rana Plaza collapse and a series of deadly factory fires resulted in much hand-wringing over how to improve safety in Bangladesh’s garment industry. But 103 years after the Triangle Shirtwaist fire, we still have our own dirty garment secret, much closer to home.

There are some 5,000 garment manufacturers registered in Los Angeles County where an estimated 50,000 workers make clothes. The true numbers are almost certainly higher since many businesses do not report their employees, pay taxes, or carry insurance. Some L.A. garment factories are safe and decent workplaces where skilled employees make high-end denim, swimwear, and other products for elite brands. But in many others, where clothes are sewn for the “fast fashion” industry, the conditions are similar to those in New York sweatshops over a century ago or to those in Bangladesh today.

Bet Tzedek, the public-interest law firm where I practice, has represented hundreds of L.A. garment workers over the past decade, and their stories are sobering. Workers earn as little as two cents per completed garment. The pay, predictably, falls far below minimum wage, sometimes less than $200 for workweeks of 65 hours or more. Even in factories where breaks are permitted, piece-rate pay encourages workers to stay at their sewing machines for unbroken stretches. Musculoskeletal pain and related health problems are common. Over 100 years after workers were unable to escape the Triangle Shirtwaist Factory because the doors were locked, some of our clients have worked in factories without access to fresh water or functioning bathrooms, where bales of fabric block fire exits, and where owners lock workers in the building during overnight shifts.

Statistics bear out our clients’ testimony. According to research conducted by UCLA, over 90% of garment workers in L.A. experience overtime violations, and more than 60% are not paid minimum wage. The federal Department of Labor (DOL) found violations in 93% of the 1,500 inspections of garment factories it has conducted since 2008.

It wasn’t supposed to be this way. In January 2000, a landmark law went into effect in California with the intention of eradicating garment sweatshop labor. Before passage of the law, known as AB633, factories that often had no assets other than a few sewing machines would close, move, or reorganize under a different name in response to legal claims, leaving workers empty handed. AB633 established an administrative process in which companies that contract with sweatshops can also be liable for a share of workers’ unpaid wages.

In response, the industry reorganized. Over the past decade, thousands of middleman companies sprang into existence to funnel orders from retailers to factories. These subcontractors create a buffer between workers and the fashion houses that profit from sweatshop conditions. Not coincidentally, this is the same subcontracting structure that now prevails in the garment industry around the world, surprising brands like Walmart and Sears when their production documents are recovered from places like the rubble of Rana Plaza or the ashes of the Tazreen factory.

While we assume that U.S. garment factories are well-regulated, my clients know better: their bosses simply lock the doors to workrooms when potential inspectors are seen approaching. And paying citations is a relatively minor cost of doing business in an industry where the vast majority of workers, many of whom are Asian or Latina immigrant women, are too afraid to file a complaint.

In response to the tragedies in Bangladesh, some companies have entered agreements to inspect and monitor the factories there. Here at home, there is no such movement. When the DOL found garments allegedly destined for Forever 21 stores being sewn by workers in L.A. making less than minimum wage, Forever 21 fought the agency’s subpoena in federal court, arguing that it shouldn’t be forced to disclose sensitive information such as where it makes clothes or what systems it has in place to monitor compliance with the law.

There is little incentive for the law-abiding sector of the industry to get involved. Fashion houses paying fair wages for domestic labor are not competing for the same customers as the companies using sweatshop labor. And organizing a low-wage, immigrant workforce on an industry-wide scale requires investments of time and money that have not been forthcoming.

What else can be done? Paying workers less than minimum wage is theft, and criminal prosecutions of factory owners could cause many to rethink their business models. Aggressive investigations by government agencies could begin to unpeel the layers of subcontracting that protect the reputations of retailers and keep the sweatshop system humming.

The simplest solution would be a law clarifying that retailers are liable to workers who prove they sewed garments sold in stores, regardless of who signed the contract with the factory or how many subcontractors were involved. Such a law would swiftly clean up supply chains. But it would also likely mean fewer inexpensive clothes for shoppers and could send more garment jobs overseas if we aren’t willing to pay more.

The question is whether we want sweatshops in our backyard. It took more than 1200 dead bodies for the Bangladesh agreements to be proposed. What will it take here?

 

Kevin Kish

About Kevin Kish

Kevin Kish is the Director of the Employment Rights Project at Bet Tzedek Legal Services in Los Angeles. He leads Bet Tzedek’s employment litigation, policy and outreach initiatives, focusing on combating illegal retaliation against low-wage workers and litigating cases involving human trafficking for forced labor.

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.

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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