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Know Your Rights
Source: City Limits
Subject: Workplace Justice
Type: Media Coverage

Waging Bitter Battle Just To Get Paid $6.75

Julia Ortiz, 38, says she worked 11 hours a day, six or seven days a week, organizing and selling clothing at the discount department store Save Smart on Knickerbocker Avenue in Brooklyn for more than six years. She was paid $35 a day – between $3 and $4 an hour for her work.

“I had no time to spend with my children,” Ortiz said, in Spanish, of her kids, now 12, 11 and 3. “When I was at work I couldn’t call them or communicate. When I was at home I could not give them what they needed.”

Once, for three weeks, she was paid nothing at all, she said. Ortiz and her three children moved into one bedroom in her aunt’s apartment. “Sometimes I went to the church for help with food. We had so little,” she said. “I could not buy books or a pencil when my children needed it for school.”

Ortiz’s tale is one of hundreds that the New York Immigration Coalition hopes will become a memory under a new gubernatorial administration. Confronted with workers’ unceasing reports of being paid below the New York state minimum wage of $6.75 an hour, the Coalition is working to ensure that more employers honor the law. Since this spring, its Campaign to End Wage Theft working group has been developing a blueprint of recommended changes for the state Department of Labor to address the problems Ortiz encountered. The group plans to deliver the proposal at a formal press briefing sometime in the next few weeks, now that Attorney General Eliot Spitzer has been elected governor.

“Almost regardless of whether a particular administration has been committed to this goal or not in the past, both the state and federal Department of Labor need to significantly ramp up what they’re doing,” said Annette Bernhardt, a deputy director of the Brennan Center for Justice at New York University’s School of Law, who is helping draft the blueprint.

By November 2004, Ortiz and two of her fellow Save Smart workers, Maria Martinez and Consuelo Echeverry, had enough. They filed a report with the New York State Department of Labor, protesting their low wages. But soon after the Department of Labor (DOL) sent investigators to the store, Echeverry and Ortiz were fired. Martinez had already left her job.

The DOL helped to negotiate an out-of-court settlement of $50,000 for the three women, for wages owed that they think is closer to a combined $275,000. Now the Bushwick community group Make the Road by Walking and attorney Deborah Axt are helping them take their case to federal court. The women and Axt said they have given up on the Department of Labor for this case.

“We’ve stopped interacting with them,” Axt said. “They did a really weak investigation and because of some of their policies they were able to collect some portion of the money, but not much. They went after two years [of wages, out of] six years that they have in the statute of limitations.”

Labor Department Chief Investigator Charles DeSiervo said his department shouldn’t be blamed for the women’s apparently retaliatory firing, because it had to tell the owner of Save Smart which employees’ wages it was investigating. He said he also could not help the women get their jobs back because they are undocumented workers – a designation Axt challenges.

Phone calls to the Save Smart owner were not returned. Attorney Cliff Schwartz represents the owners, but would not comment or even name the defendants – even to lawyer Axt.

“We did the most we could on this case and tried to get the claimants as much as they could,” DeSiervo said. “We work very, very closely with these groups, but they have to understand what our limitations are.”

The New York Immigration Coalition plan includes suggestions for how the Department of Labor might use community-based organizations to supplement its investigations, possibly even contracting work out to the organizations.

Milan Bhatt, an employment associate at the New York Immigration Coalition, said that a limited number of the department’s 150 investigators speak Spanish or Chinese, which has also prevented the department from working proactively to stop employers from breaking the law.

“Currently the DOL is relying almost exclusively on a complaint-driven process,” Bhatt said. “They are not taking the initiative or being proactive. They’re not looking enough in terms of patterns. Those are the things we’re hoping to reform.”

DeSiervo pointed out that Gov. Pataki required the department to hire investigators who speak foreign languages, and said half the investigators hired since that 2001 initiative do speak a foreign language. According to DOL figures, there are 35 investigators in New York City who speak Chinese, Korean or Spanish. In the first nine months of 2006, $3,206,360 in minimum wage payments was collected for city workers.

DeSiervo, who has worked in the department for 35 years, also said that he does not expect much change under a new governor. “I’ve been through quite a few administrations and I’ve never seen them increasing or decreasing our work,” he said.

Nonetheless, the Campaign to End Wage Theft working group thinks the change in government is an opportunity to highlight the acceptance of below-minimum wages in the New York City economy.

The group wants the dozens of nonprofit organizations working on minimum wage cases to have a more formal role in working with the Labor Standards Division, the division of the Department of Labor that handles wage issues. “There are a lot of great legal resources and community resources who work on this issue and care about it passionately and who would love to work with a new administration to bring some change in these workers’ lives,” said Bernhardt, of the Brennan Center.

Dozens of local groups already are helping to identify employers who are breaking the law, to help deal with what they call an overload of cases for DOL. The Chinese Staff and Workers’ Association helped file a lawsuit against Jing Fong, the largest restaurant in Chinatown, for failing to pay workers overtime. In East Harlem, the Movement for Justice in El Barrio met last month to begin organizing around the below-minimum issue. The Retail Action Project celebrated a victory Oct. 26 when Henry Ishay, owner of Soho retailer Yellow Rat Bastard and other stores, was arrested in a case it brought to the attorney general’s office.

DeSiervo said that just in the past year the attorney general’s office has begun working with his department on large-scale investigations that will lead to civil prosecutions, like the investigation in the Ishay case. The scope of the cases, however, would not help someone like Ortiz.

“The civil prosecutions that these groups have been talking about have not been made available by the attorney general’s office until this year,” DeSiervo said. “They are very, very time-consuming investigations that are very, very costly. They are limited and restricted because we have to be able to justify the amount of hours involved.”

Brad Maione, an attorney general’s spokesman, said this work has been “a significant initiative in the office.”

“We have done numerous cases, dozens and dozens of cases in terms of paying overtime, failure to pay the minimum wage and other labor and employment rights,” he said.

On Jan. 1, the minimum wage in New York increased from $6 to $6.75 an hour, and $3.85 to $4.35 for tipped workers. The minimum wage will increase again on Jan. 1, 2007 to $7.15 and $4.60. But the Brennan Center found through an informal study conducted right after the last increase that the majority of New York City employers and workers do not know the minimum wage. The state levels are above the federal minimum wage of $5.15. Also, Mayor Bloomberg in 2002 signed a bill that granted more than 50,000 city contract workers $10 an hour by July of this year.

Meanwhile, at Make the Road by Walking, Ortiz and her fellow former Save Smart plaintiffs have moved on to jobs that pay more than the New York state minimum. They support other Bushwick workers going through the same thing through protests and meetings. At weekly gatherings for workers in Bushwick there is a continuous stream of new attendees with pay stubs showing pay below the minimum wage, looking for guidance.

“Soy de Mexico y queria aprender mis derechos,” they echo over and over as they introduce themselves around the circle. “I am from Mexico and I would like to learn my rights.”