By Erin Sherbert
By Rachel Swan
By Erin Sherbert
By Erin Sherbert
By Howard Cole
By Erin Sherbert
By Erin Sherbert
By Leif Haven
Gloria Esteva, a diminutive housekeeper from Oaxaca, Mexico, is wearing an orange T-shirt and carrying a large bullhorn. She exhorts a crowd of about 50 protesters who are standing before a gate guarding the home and sculpture garden of technology investor Sakhawat Khan and his wife, Roomy.
"We say this is a big deal because it comes after a long history of exploitation," shouts Esteva, 52, who is flanked by Vilma Serralta, a 69-year-old San Mateo woman who says she worked for four arduous years as the Khans' housekeeper, toiling 14 hours a day, six days a week, with no breaks, and was paid less than $3 per hour. "They've got a new name for 'slave,' and it's called 'domestic worker.'" At the back of the crowd Julio Loyola, a self-effacing Peruvian day laborer with salt-and-pepper hair, holds a placard that reads, "I'm here to demand respect for domestic workers."
"We're here bringing the voice of the community to support Serralta," he says. "We're here to make the legitimate demand that her rights be respected."
At first glance the rowdy protest last week on the quiet streets of Atherton, an elite Silicon Valley town 20 miles south of San Francisco, might look like the haphazard antics of typical S.F. Mission District left-wing rabble-rousers. Esteva, Loyola, and a couple dozen other protesters came to Atherton in an elderly multicolored schoolbus. They marched and chanted for a half-hour while moving along the mansion-and-tree-lined Isabella Ave., creating a megaphone-amplified racket before stopping in front of the Khan residence to shout: "Cut her a check! Cut her a check! Cut her a check!" (Sakhawat Khan did not return a call requesting comment.)
But there was a coolly conceived legal strategy behind the radical rowdiness of Esteva and Loyola, who are part of the small group of volunteers and staff attorneys creating this protest.
The group, operating out of the offices of La Raza Centro Legal on San Francisco's Valencia Street under the rubric Workers' Advocacy Project, has run the nonprofit equivalent of a boutique law firm for the past four years. The project has invented a new type of legal practice to combat one of the most widespread and overlooked areas of crime in the United States, in which employers violate wage and injury compensation laws in the belief that their workers' illegal-immigrant status will make them afraid to approach authorities. Protests like this are just one of the strategies this group uses to get satisfaction for clients whose small-dollar-amount, difficult-to-prosecute cases would be anathema to a more-established employment law firm. The Workers' Advocacy Project opened 125 such cases last year.
Behind the shouts and placards is a sophisticated plan driven in part by immigrant volunteers whose own day jobs bring them minimum wage, if that. The same Thursday morning, project attorney Hillary Ronen filed a federal lawsuit on Serralta's behalf, demanding that the Khans pay more than $120,000 in back wages, overtime, break time, and attorneys' fees. Attorneys with the Legal Aid Society–Employment Law Center of San Francisco are serving as co-counsel. "It's rare for a woman to have the courage to come forward like Serralta did," Law Center attorney Christina Chung says.
The demonstration was attended by four television cameras and as many notebook-toting print hacks, who'd all received embargoed press materials at 4 p.m. the previous afternoon detailing a made-for-TV news story in which a poor senior citizen was systematically ripped off by a couple whose house is listed for sale at $17.9 million.
The raucous, slogan-shouting march to the Khans' residence was Esteva's idea. It also served a steely-eyed purpose. The organizers were trolling for future clients among the dozens of maids, gardeners, and laborers working among the mansions of Atherton. "We want them to hear us," Esteva says, "so they know there's someone they can turn to."
Lately, increasing numbers of immigrant workers have turned to the Workers' Advocacy Project team, which comprises Esteva, Loyola, and Ronen plus legal-aid volunteers Ines Lazarte and Angela Peña, who did not attend last Thursday's rally because they were at their day jobs as maids. Every Tuesday, the group operates a clinic where day laborers and housekeepers can receive legal advice. Their cases are screened for the possibility that the team may take them to the California Labor Commissioner, to the courts, and, sometimes, to the streets.
The last time the Workers' Advocacy Project made a media splash with such protests was with the case of Abdelmohssen "Mike" Abozaid, a local contractor alleged to have stiffed several workers out of thousands of dollars. Last year he fled to Egypt to avoid trial on charges of felony grand theft. The S.F. district attorney's office said Abozaid is still at large.
Paying rock-bottom wages to illegal immigrants has long been a staple issue in American popular culture and politics, whether in the recent movie A Day Without a Mexican or in the 1994 California Senate race, when it turned out that both the Republican and Democratic candidates had employed undocumented housekeepers during a year when anti-immigration rhetoric constituted the state's top political topic.
"There is a system that has been created on purpose to look the other way to bring them [immigrants] in because everyone knows that we cannot function without them," Governor Arnold Schwarzenegger was recently quoted as saying.
But in cases where employers pay less than the minimum wage, fail to compensate for on-the-job injuries, or just plain rip off their workers — an ongoing problem among those who work on San Francisco's construction projects – it's the boss who violates California labor law.
To address this problem, Ronen has built up a legal practice that, in what might be considered an ironic twist, depends in large part on the immigrants who work as maids and in day labor.
Rather than feeling exploited for their unpaid efforts, the volunteers consider the Workers' Advocacy Project one of the most valuable aspects of their lives. Their efforts as negotiators, legal strategists, counselors, protesters, and marketers of the project's services are key to its success, Ronen says. During the team's three years of operation, the amount of wages and injury compensation it has recouped for workers has doubled every year.
In the case of the handful of employers considered hard-core abusers, "they think the whole point of hiring an immigrant was they were supposed to pay under the table," says Ana Maria Loya, executive director of La Raza Centro Legal. "Our message is, that hurts all of us."
I first met Esteva and her volunteer colleagues Lazarte, Peña, and Loyola when I interviewed day laborers two months ago about violent muggers who sometimes target their ranks. Many of the workers were also keen to tell me about another type of transgressor who worsens their already bottom-rung lives.
Nearly every worker had a favorite tale of bad-apple contractors who seemed to make sport of tricking Mexican and Central American immigrants into hauling refuse, hanging Sheetrock, tarring roofs, and performing other backbreaking, dangerous labor on the promise of a fair day's wage — and then ripping them off. (Workers I spoke with on the street didn't want me to use their names, citing problems with their immigration status.)
One man told me about a contractor who hired three men early in the morning to help with construction work, took them to McDonald's at 4 p.m. for a late lunch, left the restaurant to supposedly get something out of his truck, and never returned. Two others recalled instances where employers drove workers to job sites in far-off locales such as Fremont, then never returned, leaving them lost, broke, and with no easy way back to San Francisco. Lazarte says she has heard of several such cases. The laborers sometimes end up spending a hungry night at these faraway sites before figuring out a way back to San Francisco's Mission neighborhood, so they can stand on the street waiting for yet another contractor to offer them a day's work.
Also common were tales of employers who hired individuals or crews for days or weeks, then offered to settle up for less than the agreed-upon pay after the work was done. Other employers, meanwhile, left workers injured or maimed in construction accidents, without providing any recompense for medical expenses or lost wages.
Most scams are more prosaic. One middle-aged laborer told me about the times he'd been driven to job sites, worked all day at what he thought was an agreed-upon wage, then "at 5 p.m., I stopped working, and he never came back."
Sometimes these scams aren't petty. A slim young man from Mexico City, standing on the sidewalk at Cesar Chavez and Valencia, told me how he'd worked for weeks installing wood floors and is owed $2,400 in pay, with no satisfaction in sight. He's been trying to figure out his legal options. "The contractors know we don't know how to put up a legal fight; they know we're alone," he said. "That's why they do it."
While my small survey amounts to a mere collection of anecdotes, it turns out I was witnessing manifestations of a truly widespread phenomenon.
In a 2006 study by faculty at UCLA, the University of Illinois at Chicago, and New School University in New York, researchers interviewed 2,660 day laborers in 139 municipalities in 20 states and found that wage theft was a "routine aspect" of day-labor work. Almost half of the workers surveyed had been denied payment during the previous two months. Workplace injuries, untreated and uncompensated, were also commonplace: one in five workers had suffered a workplace injury. Half of those received no medical care, and two-thirds lost time from work. A tiny fraction had their medical expenses covered by insurance. According to the study: "In most cases, employers evade these costs (i.e., rising workers' compensation premiums), often by simply denying coverage to workers or by threatening workers with nonpayment of wages or other forms of retaliation should they attempt to file a claim."
Another study of day laborers by U.C. San Francisco researcher Nicholas Walter noted that S.F. workers are often afraid to report injuries for fear of deportation. "They work in dangerous settings, and a variety of factors such as lack of training, inadequate safety equipment, and economic pressures further increase their risk of work injury," Walter wrote. "The day laborers are isolated from family and community support, living in a local context of homelessness, competition, and violence." He writes of some cases where, when workers ask for recompense, employers threaten to report them to immigration authorities.
With the approaching Olympic Games in Beijing, stories about human-rights abuses against migrant workers in China have become fashionable. The 2007 Pulitzer Prize for International Reporting was awarded to theWall Street Journal's coverage that included a story by Mei Fong about a Chinese migrant worker who'd been injured and cheated of wages while toiling far from home. But China has little on the United States when it comes to abuse of migrant workers. While I was speaking with the project group, Leon Victoriano, 47, a construction worker from Guerrero, Mexico, arrived and sat with us.
Victoriano described how, in August 2004, he was chipping away stucco while on a ladder — rather than safer scaffolding — when a piece of concrete flew out and pierced his eyeball. He couldn't work, his employer offered him no recompense, he was uninsured, and he had no assets to speak of. So he lived penniless on the streets, enlisting the Workers' Advocacy Project to help him recover money from the state's Uninsured Employers' Fund. After three years of applying and waiting and insisting, he received $3,000. "I still can't see very well," he says.
UCSF researcher Walter, who immersed himself in the world of day laborers for eight months, described the experience of a former indigenous farmer from Chiapas who had a bucket of hot tar spill on his head, causing extensive and disfiguring burns on his face, neck, and hands. After convalescing for three weeks, the worker returned to his employer to demand compensation. The employer said there had been similar situations many times before, and that he'd never had to pay, because he knew his workers were here illegally. According to Walter's study, the worker eventually realized that the $7 per hour he received from the job where he'd been burned was the best he could get, so he swallowed his pride and returned to work.
"The fundamental problem is that our society has created a class of people who have been excluded from the normal protections," Walter says. "Because of that, it makes them vulnerable on lots of levels, from violence to work injury."
UCLA's 2006 day-labor study, meanwhile, notes that the problems Walter found in San Francisco exist nationwide. "Our findings reveal that the day-labor market is rife with violations of workers' rights," the study's authors write. "Day laborers are regularly denied payment for their work, many are subject to demonstrably hazardous job sites, and most endure insults and abuses by employers."
These conditions are for the most part illegal in California; the state's labor laws apply to all workers, even those who may be here illegally. But the state government department charged with enforcing those laws is the Division of Labor Standards Enforcement, one of those orphan California regulatory agencies that is so underfunded, understaffed, and mismanaged that lawlessness and impunity become a normal way of doing business.
The department has shrunk since the 1970s, even though the California workforce has grown by more than 8 million people during that time. In San Francisco, where Ronen receives hundreds of complaints each year from workers who say they've been ripped off, there's only one hearing officer and two case managers. A 2005 Sacramento Bee report noted that some division investigators were asked to handle 200 cases at one time. In December 2005, the chief of the California agency quit after a year, saying it was a hopeless mess. It is now run by San Francisco attorney Angela M. Bradstreet, who made her bones defending employers against claims they cheated workers.
"They can't handle the volume of these cases," Ronen says. "It takes basically a year from the time you submit a claim to the time you have a judgment that's entered into Superior Court that you can collect money on. Within a year, when you're dealing with a day laborer who's pretty mobile, and a fly-by-night contractor who is disappearing after violating a whole slew of laws, you just lose one or another of them."
Even when it's possible to make a case, some employers' contempt for the law actually plays in their favor. "The complaint process is very passive," Ronen says. "If the employer doesn't show up, there are few ramifications until there's a judgment. The [contractors] know how long it takes."
As a result, Ronen has had to improvise, stretching her lawyerly schedule with the help of volunteers. With the years of working as legal advocates have come skills and confidence beyond what the stereotype of low-paid housekeepers and laborers might lead one to believe.
The stern, unyielding demeanor of Ines Lazarte, a former beautician from La Paz, Bolivia, projects the sense that, given somewhat different circumstances, she might kick my ass. "We work with abusive employers; I suppose that's the term," says Lazarte, glowering from her chair at the offices of La Raza Centro Legal, where she's accompanied by Esteva and Peña. "I could use stronger, more appropriate ones, but I won't. The government's allowing for a situation where people aren't treated equally and that's corrupt."
Lazarte, Esteva, and Peña all make their living as housekeepers. But they're most passionate about their avocation of staring down small-time contractors who are known for ripping off day laborers — who many San Franciscans see every day waiting to hail pickup trucks along Cesar Chavez and Folsom.
When Loyola and the other volunteers helped launch the La Raza workers' rights program three years ago, they managed to recoup $79,000. As word spread among workers that they can push for recompense from deadbeat employers, the agency's client list has swelled to a point where it is already on target to improve on 2007's $300,000 in recovered wages and damages. And word on the street is circulating that bilking day laborers might not be a risk-free crime.
Ronen, who graduated from UC Berkeley's Boalt Hall School of Law in 2003, received a two-year fellowship to help day laborers and domestic workers. "I created a popular education course to train the workers in the laws," she says. "As part of that course, they agreed to work in the legal clinic to put to work what they learned in the class, to help their peers."
Volunteers phone employers accused of shortchanging workers to persuade them to pay up. Failing that, Ronen may file complaints with the California Labor Commissioner's office and place more calls to the employer. For cases where the project has obtained judgments but can't get employers to pay, a collection agency is sometimes called in.
The case of Serralta, the allegedly cheated housekeeper, is a large, dramatic exception to smaller cases that make up much of the Workers' Advocacy Project's caseload. Rather than dealing with millionaires who may have held an elderly immigrant in a modern version of servitude, many of the group's cases consist of half-broke contractors who cut corners by underpaying day laborers.
When I spoke with Ronen last week, she had just tracked down a contractor who owed several thousand dollars to three workers who'd done painting and construction work. He had promised to give her a check for $1,000, a possible, partial success after months of effort by Ronen and her volunteers.
"He stopped picking up the phone," Ronen said. "We filed a Labor Commission complaint. He didn't show up to the [California Division of Labor Standards Enforcement case] conference. We went to his house. He admitted to owing wages, but made some excuse about why he couldn't pay. He said he didn't get paid for the job. A neighbor called the police because we were chanting.
"He told the police to tell me to call him. I called him five or six times, but he never answers," she continued, adding that if the employer doesn't come through with his promised partial payment, she will turn his case over to a collection agency.
For the record, the contractor did not respond to my phone calls, putting him on the Workers' Advocacy Project's list of deadbeat contractors. "They know they're judgment-proof because they're broke with no credit," Ronen says. "So they know they can ignore it." She recounts the story of one San Francisco contractor who disappeared without a trace in lieu of paying a few thousand dollars' judgment. The woman whose house he'd been working on, who'd already paid the contractor in full, felt sorry for the workers and helped make up their wages.
But for every permanent deadbeat, there are employers who eventually cave after phone calls from Workers' Advocacy Project advocates, judgments from the labor commissioner, public protests, or calls from a collection agency. Loyola says the group's success so far has created a virtuous circle where the group becomes more effective with experience, and more workers become aware of that successful work and bring their complaints. Meanwhile, employers, who've learned through the grapevine or through news reports of cases such as that of fugitive contractor Abozaid, become less determined to avoid payment.
Key to the group's gains has been the same sort of interplay between different personalities and legal strategists that you might see in scenes from TV shows such as Boston Legal — if the show were cast from the ranks of San Francisco immigrant housekeepers and laborers. They contact employers and draft demand letters. In situations where such letters require perfect English skills, they draft the points a letter must touch on, so it can be prepared by a staff attorney. These sessions have come to resemble the case strategy sessions one might see in an ordinary law firm. "They meet here until 8:30 or 9 each night, working on these case," Loyola says.
A powerful weapon in the group's arsenal is social pressure — in the form of actual pickets at an employer's office or home, or, more typically, as cajoling, schmoozing, and negotiation between employers and La Raza volunteers.
"For me, it's been witnessing something that's transformative," Loyola says. "It's not just skills building. The role [the volunteers] are playing, it's never something they ever get over. They'll never go back to how they were prior to playing that role."
Lazarte has become the toughest negotiator of the three. She calls accused rip-off artists and lets them know they can either pay or expect to hear from a collection agency. Esteva is the radical ideologue, deft with a megaphone, whose fervency reminds her colleagues of a higher purpose to their work. Peña is the back office whiz — "very efficient, very smart, and very by-the-book and responsible," Ronen says.
Loyola, meanwhile, is the group's soft-spoken voice of reason, explaining that he tries to come across as neutral in employer-worker disputes. "Julio's the good cop. I'm the bad cop. I'm always screaming, so Julio's the reasonable one who comes in" and talks reason to an employer, Ronen says. "Aside from strategizing about the cases, if we do any house visits or protests, Julio will plan those, too. Julio also walks the streets, to let them know about our clinic."
Loyola earned a business degree in Lima, Peru. His skills with a spreadsheet and knowledge of business strategy led La Raza Centro Legal two years ago to make him president of the $1.5 million-per-year nonprofit's board of directors. He still works installing closets and other day labor jobs, so he can continue sending money back home to his family.
He has also obtained work with the city's health department, publicizing city programs to prevent the spread of illnesses among recent immigrants. But he still makes a point of helping his comrades at the Workers' Advocacy Project obtain redress for exploited employees.
"They worked her 12 hours a day, sometimes more, browbeating her, calling her stupid," Loyola said, describing the treatment allegedly meted out to Serralta, the housekeeper who'd worked for the Khans in Atherton. "We want to make sure our voice gets heard."