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Know Your Rights
Source: The New York Times
Subject: Workplace Justice
Type: Media Coverage

Begging for Your Pay

Romulo Saldana** was looking for work.

It was 2001, and Saldana had moved to East Harlem from a small town in the Ecuadorian Andes three years before. Besides a sister, he knew few people in the city. A friend sent him to Manuel, an older Ecuadorian, who had papers and owned a successful construction company in Queens. The man hired Saldana as a day laborer and, over the course of five years, he built some 30 block houses, the kind of low-rise brick rental units that have sprung up lately in sections of the Bronx, Brooklyn and Queens. Eventually, Saldana was promoted to foreman.

Every week, Saldana would gather his crew of six men in the “yarda” — a garage in a house the boss owned in Long Island — to hand out their pay. Only the money would always come up short — sometimes $3,000 for all of them together, sometimes just $1,000, even when they were owed a total of $4,000. At first, Saldana didn’t much mind his boss’s negligence: it was the height of the construction boom; he was able to do other jobs on the side. “I trusted him because he was from my country,’ Saldana told me, in Spanish. “I thought, ‘’If he isn’t going to pay me this week, he will pay me later.’”

In 2006, Saldana added up all those deferred promises in his notebook: $34,000. He is still seeking most of that money.

What does $34,000 mean to a New Yorker? For Saldana — who works in the kitchen of a restaurant in Long Island now that construction work has dried up — it meant the difference between being able to send money home to pay for his teenage daughter to go to middle school, and provide for a caretaker and medicine for his ailing 90-year-old father. It was the difference between paying his own rent and borrowing money from his sister. And this Christmas, he can’t afford to buy presents for his American-born 6-year-old. “I will tell my daughter, Santa Claus is very poor,” he said.

Jason Wisdom, a 39-year-old Rutgers-educated freelance computer consultant, is owed roughly the same amount of money but his desperation takes a different form. For a year, Wisdom contracted for $70 an hour with a client, who in turn had a contract with Sirius Satellite Radio. At first, the payments came on time: within 30 days. Then they started to arrive more slowly. Then, they didn’t come at all.

He waited on $31,000 through November 2009; by February, the company still owed him $20,000. Wisdom, who said he had had a perfect credit score until then, racked up over $20,000 in credit card debt, and his bank raised his interest rates to 30 percent. He was paying more than $500 a month in credit card interest, and withdrew from his retirement accounts to make ends meet.

Unlike Saldana, Wisdom knew his rights. He filed a complaint with the Better Business Bureau. He called Sirius directly, to see if the company had paid his client (it had), and left a message for a detective in the Nyack district attorney’s office.

And Wisdom saved e-mails. The kind of excruciating e-mail in which the client says, “the check was postmarked last Friday,” and then, several weeks later, the check has disappeared into the ether and the client offers, sort of apologetically, to call up accounts payable to find out what happened. And then, radio silence, filled only by the ping of Wisdom’s messages, fired off every four or five days, asking after the results of that inquiry.

Saldana, on the other hand, did the only thing he knew to do. He called his boss every week for a year, using other people’s phones in the hopes that Manuel would pick up. (He did, sometimes. He always said he was “duro” — hard up on cash. He went and parked himself in front of Manuel’s house, in Middle Village, Queens, but his former boss wouldn’t see him. Eventually, Saldana made his way to Queens Civil Court, where, without a lawyer’s assistance, he managed to extract a settlement of $10,000 from Manuel. Saldana was able to garnish a few thousand from Manuel’s bank account, but his former boss wouldn’t pay the rest. Now Saldana is in court again, suing for $25,000.

Like many New Yorkers, Saldana and Wisdom both spent months — in Saldana’s case, years — essentially working for free. No one forced them to stay in those jobs, but there were too many contingencies (not least that, in a bad economy, the devil you know might be better) that caused them to stay on and endure a stressful, humiliating and ultimately unjust experience.

Neither man is likely to benefit from the new protections of the Wage Theft Protection Act, signed into law this week by Gov. David Paterson, although there is a separate bill pending in Albany that would enable the cases of independent contractors to be investigated by the state Department of Labor. Sara Horowitz, the founder of the Freelancer’s Union, explained the “deadbeat clients” bill this way: “There is something wrong in our economy,” she said. “It’s happening to people with formal skills. To people without them. It’s happening across the board.” She rebuffed the idea that her members were, “professional slackers with lap tops.” “Think of your friends. They are going from one job to another, and waiting a year in between. So people are freelancing, and cobbling it together, or not. I feel like that’s the big lie. We’re not middle class.”

Chasing after money is an excruciating experience, and one I know well. I am 28, earn a beginning writer’s salary and, in an expensive city, I need to freelance to make ends meet. I am also responsible for more than $50,000 in student loans. Every month, there are always five big bills: rent, food, cell phone, credit card and the loans. If one freelance check doesn’t come — and they almost never arrive even close to the time an employer says I should expect them — I rotate which bill I’m going to have to delay paying.

So when I read Jason Wisdom’s e-mail chain, I felt my pulse quicken and the veins pumping in my chest. In them, I recognized a version of my own e-mails to employers.

There are e-mails in which you can sense Wisdom tiptoeing, trying hard to conceal his distress. But there are others where it all explodes outward — not just his agitation but his anger at having to reveal himself in this way. “I ABSOLUTELY NEED THIS MONEY TO BE DEPOSITED OR I WILL EXPERIENCE COMPLETE FINANCIAL RUIN,” he wrote in all caps and bold letters, after three months of polite inquiries to the head of the company. The reply that he receives from the manager is civil and untroubled: “You say this isn’t important to me, but it is.” About two months, and dozens of other e-mails later, Wisdom’s check finally arrived.

Freelancers often engage in a delicate, disquieted dance. People showed me drawn-out e-mail chains with a subject line of “URGENT,” but the sign offs are peppered with “Thank you!” and “Please tell such-and-such-colleague I hope he feels better!” and assurances from the exasperated, resentful freelancer of how much she is looking forward to working with the company again in the future. “I’m in the professional equivalent of an abusive relationship,” said Ben Ryan, a low-income freelancer writer who says his former employer owes him $12,925. “I would describe an overriding, constant sense of anxiety. Of course, that’s what the freelancer experience is.”

An opaque terminology accompanies these delays. There are “checks” versus “processed invoices,” “mailed checks” versus “cut checks,” “payments processed” versus “payments in the system.” It was always unclear to me whether any of these terms described real occurrences, actual actions taken, or whether they were merely meaningless placeholders for an action that never took place. There is always something that holds up the payment — a lost invoice to be pursued, a person who went on vacation who is suddenly being replaced by someone else, a contract that wasn’t signed, somebody to follow-up with in another, buried department, until you get to that individual who may have actually laid on eyes on your check.

At least Jason Wisdom, Ben Ryan and I have a least some expectation of being paid. That’s not the same for many people doing construction or domestic work in this city. I once interviewed a nanny in Bensonhurst, Brooklyn, who said she worked for a year without being compensated. Her job wasn’t even really a job anymore, because she was working for free. But she stayed on because working for free with the faint possibility of getting paid was better than the prospect of not having any job in this economy.

This sort of situation is so common that Saldana’s lawyer, Elizabeth Wagoner of Make the Road New York, has created a manual for summer legal interns that lists 10 common excuses from employers for why they cannot pay. No. 8 is the most cynical: “We’d like to pay you, but we can’t – because you don’t have a social security number.” Wagoner’s clients can’t fire off an e-mail or probe accounts payable when their bosses run away. How does one chase after money when all you have is the first name and the cell phone number of some fly-by-night contractor, and maybe the license plate number that you copied off the back of his work truck? How do you negotiate payment in a language that is not your own?

As a reporter, I found that following these kinds of stories has had a destabilizing effect, inviting feelings that are neither neat nor easy to package. Nothing I could go through would resemble what Romulo Saldana has lived, and the last thing I’d want would be to suggest otherwise. I get annoyed with myself when I even think it. But here I am, spending my days reporting on people seeking back payment while I am doing the same. I’m listening to stories of people borrowing money to make ends meet and thinking of whom I could ask to borrow from.

Reporting on the subjects I cover — on people who have lived through these sorts of nightmares — I’ll be honest: at the end of the day, you take a certain psychological comfort in knowing that you are different — it helps you withstand the creeping sensation that whatever failed in the lives of the people you write about could fail in your own. But, suddenly, you see your grip on that difference start slipping away. And I’m confronted by a thought so troubling it’s difficult to even entertain: we are trapped by forces greater than ourselves.

**Romulo Saldana is a active member of Make the Road New York (MRNY).