Election aftermath: The road ahead

Election aftermath: The road ahead

Nov

10

2016

photo-1445365813209-5ab6d8f397cbWhen I was in law school, a white male student ran for a position in our student body government. In his campaign statement, he said that if elected, he would eliminate funding for the school’s minority organizations and use the money to “blow lines” off the taut stomachs of Southeast Asian boys. At a town hall meeting, this man still did not seem apologetic and told us to lighten up, that it had just been a joke. Many minority students, including yours truly, were outraged. When people ask why I became a civil rights lawyer and involved in progressive causes, I cite that incident as one of several defining moments. Because it was heartbreaking that someone in San Francisco these days would still think that racist jokes were acceptable, and that some people didn’t think it was a big deal.

The election results brought new heartbreak. Whatever theories emerge about the outcome, one thing remains clear – there is still so much to be done to protect our civil rights. If you think we are safe from racism, sexism, homophobia, and xenophobia in this country, think again. If you think that the laws we have in place offer enough protection to prevent unfair treatment, think again. If you think that there are too many complaints about discrimination and harassment, think again.

Our state’s public policy is clear:

“It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general.”

Discrimination in any form adversely affects us all. It’s not a joke, and it’s definitely a big deal. People who come to my office are not litigious by nature – they have suffered real harm and mistreatment in the workplace simply because of who they are. Because their skin is not white. Because they are women. Because they were not born in this country and speak imperfect English. Because of who they pray to. Because they are perceived as too old or too disabled to work. Because they love their same-sex partner. Because of these and other immutable qualities that are supposed to be embraced and protected under our laws and under human decency.

If you think we’ve progressed to be more inclusive, look harder at what this nation has revealed about itself. And look harder at the work that needs to be done. Now more than ever, we need to continue seeking justice, fair treatment, and equal opportunities for all.

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

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Lisa Mak

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The Top Five Wins for Workers’ Rights in 2014

The Top Five Wins for Workers' Rights in 2014

Dec

31

2014

By Sharon Vinick

2014

As the year comes to a close, it’s time for a “Top Five” list.  Interest in “Top Ten” or “Top Five” lists is so immense that psychologists have even coined the term the “Top Ten Effect,” to describe the “bump” that items on such a list receive in terms of sales.  A list of the top developments in employment law may not cause a run on any stores, but policy makers and working people should take note (drum roll please) as we now count down the list of five developments that will change the landscape of employee rights as we enter the new year.

  • No. 5:  New California Law Says Proof of Sexual Desire is Not Required to Win Sexual Harassment Claim

 The California Legislature deserves recognition for a new law that strengthens protection against sexual harassment on the job. For years, employers have tried to defend against sexual harassment claims by arguing that the harassment, although boorish, was not illegal because it was not based upon sexual desire.  This “defense” goes something like this — The boss who “joked” with his female subordinate about hopping over to a motel for the night wasn’t actually attracted to her, so that couldn’t be sexual harassment.  Or as the employer claimed in one infamous case, the ironworkers who hazed a new guy on the crew with threats of sexual violence couldn’t have perpetrated sexual harassment since they were all straight.  Earlier this year, the California legislature took away this excuse when it amended the Fair Employment and Housing Act to specifically provide that “sexually harassing conduct need not be motivated by sexual desire.”  These few short words will provide powerful protection for victims of workplace sexual harassment.  As important, the change reminds employers and the courts that sexual harassment is about abuse of power, not sex.

The California Supreme Court took aim at the hypocrisy of employers who hire and exploit undocumented workers. It has often been noted that low wage workers, regardless of their immigration status, are frequent victims of workplace violations. Undocumented workers, fearful that any complaint regarding a violation of these rights might result in their deportation, are a particularly vulnerable group, which should be supported by providing assistance in dealing with any kind of legal documentation – up to the living will management (learn more at Legal Zebra).  This year, in Salas v. Sierra Chemical Company, the California Supreme Court ruled that an employer who discriminates or retaliates against an undocumented worker can be held liable. While the case limits the damages available to these employees, it does provide that employers who violate the workplace rights of undocumented employees will be held accountable for their actions.

While the phrase “wage theft” has been around for years to describe employers who fail to pay overtime or other wages earned by their employees, a number of cases in 2014 have raised public awareness and built public outrage regarding the all-too-common practice of employers forcing employees to work without pay.  Studies suggest that employers are ripping their workers off to the tune of more than $50 billion annually.

The year began with a high profile wage-theft story from an unlikely quarter with the filing of a class action lawsuit against the Oakland Raiders by one of their cheerleaders, Oakland Raiderette Lacy T. The lawsuit sparked similar lawsuits at four other NFL franchises and, as important, a national conversation about wage theft.   In March, seven class action lawsuits were filed across the country against MacDonald’s on behalf of workers in the fast food franchise restaurants alleging its franchises did not pay employees for all hours worked and forced them to work through breaks. Challenges to wage theft kept rolling throughout the year.  In November, employees of Yank Sing, a high end San Francisco dim sum restaurant recovered a landmark settlement — $4 million in back pay and benefits for “blatant” wage theft in settlement of complaints before the California Labor Commissioner. These high profile lawsuits have increased public awareness of wage theft and their examples serve as a deterrent to future wage theft.

  • No. 2:  National Labor Relations Board Opens the Door for Retail Workers to Organize by Department

The federal administrative agency that oversees labor-management relations also took steps to level the playing field for workers in 2014.  In July, the NLRB issued a decision that makes it far easier for unions to get a foothold in large retailers, including Walmart.  In a case involving Macy’s department store, the NLRB ruled that the United Food and Commercial Workers could organize a subgroup of 41 cosmetic workers at a 150-employee store.  Before this change, unions faced huge challenges because they were required to win storewide votes.  As of 2013, only 4.6% of workers in the retail industry were members of unions, as reported by the Wall Street Journal.   That’s down from more than 6% in 2003.  The UFCW is campaigning to organize retail workers at stores like Bloomingdales, Macy’s, Target and, of course, Walmart.

  • No. 1:  Increases in Minimum Wage for Workers 

Without question, the movement that gained the most momentum this year for workers was the campaign to increase the minimum wage.    President Obama called upon Congress to raise the minimum wage from $7.25 an hour to $10.10 an hour, and signed an Executive Order to raise the minimum wage to $10.10 an hour for new federal contract workers.  Unfortunately, the gridlocked Congress did not act to increase the minimum wage that applies to all workers around the nation. However,  eleven states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Rhode Island, Vermont, and West Virginia) and the District of Columbia did raise their minimum wage.

As of January 1, 2015, twenty-nine states and the District of Columbia will have minimum wages that exceed the paltry $7.25 per hour that workers earn under the federal minimum wage.  The highest minimum wage in the nation is in the District of Columbia, where the minimum wage is $9.50 an hour.  And, by January 1st, six other states (California, Connecticut, Massachusetts, Rhode Island, Vermont and Washington) will have legally mandated minimum wages of at least $9.00 an hour. While significantly more work remains to be done in this area, increases in the minimum wages are a meaningful development for millions of low-wage workers in this country.

So, as the year 2014 comes to a close, let’s toast these advancements for workers and rededicate ourselves to improving the working lives of all employees in the new year.

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

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Sharon Vinick

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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

Mar

25

2014

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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?

 

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.

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Kevin Kish

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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

Oct

15

2013

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.

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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Michael Marsh

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Shouldn’t the opportunity to work be more than a DREAM? 2

Shouldn’t the opportunity to work be more than a DREAM?

Oct

4

2013

By Sandra Muñoz

WeAreTheAmericanDreamWhat type of job comes to mind when you think about undocumented workers?  If you instantly think gardener, busboy, house cleaner, or maybe cook, then you are very 1999.  There is a whole new generation of undocumented workers that are educated, young, technologically savvy and more American than apple pie.  There are roughly 1.8 million DREAMers in the United States as the younger generation of undocumented Americans are called.  DREAMers are generally those who:

  • are under the age of 31;
  • entered the United States before age 16;
  • have lived continuously in the country for at least five years;
  • have not been convicted of a felony or a significant misdemeanor or three misdemeanors;
  • are currently in school, graduated from high school, earned a GED, or served in the military.

The Los Angeles Times recently reported that more and more DREAMers are opting for self-employment as, for example, graphic designers in order to lawfully earn a living.

DREAMers are also earning college degrees in subject matters as diverse as sociology, biology, and the law.

And why wouldn’t they?  For many DREAMers, the United States is the only country they know.  They are fluent in English, assimilated to United States culture, and should be embraced as the new face of the American dream.  And yet there is a significant portion of the population who reject them and refer to them pejoratively as anchor babies.

This short-sighted view does not make economic sense. Since 1982, when the United States Supreme Court held that undocumented immigrant children have a constitutional right to a free public K-12 education, our country has invested in their education.  DREAMers who reside in California already pay in-state tuition fees and have access to private and public financial aid for state colleges and universities if they meet certain requirements.

Rather than reject and in some cases deport these DREAMers, shouldn’t we as a society embrace and applaud them?  Here is a population of American-educated youth who are fully integrated into our society, who desire to work, earn an honest living, and advance the interests of our society.  Why should their right to work be temporary or up for debate every few years in a volatile United States Congress?  Granting DREAMers permanent residency and a quick path to citizenship is the right thing to do – not just for them, but for everyone.

 

About Sandra Muñoz

Sandra C. Muñoz is the owner of the Law Offices of Sandra C. Muñoz located in East Los Angeles. For over 15 years, Sandra has worked on countless cases involving employment discrimination, harassment, and retaliation. Sandra also has extensive experience in cases involving police abuse. She has also been featured in the Daily Journal, written for the California Business Law magazine, participated on various continuing education panels, and taught legal courses for Dowling College.

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Sandra Muñoz

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