Making Change: Labor of Law

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Generally stone-faced, Miguel Reyes has the demeanor of a professional wrestler in miniature. But his brawn didn’t deter his boss at Sares International, the garment factory where he has worked for three years, from bullying Reyes when he tried to recoup $6,500 the company owed him in overtime pay.

It’s a common enough situation: Reyes, who generally worked 60 hours each week as a planchador, or presser, was never paid time-and-a-half for the 20-odd hours he clocked past 40 every week. When Reyes filed a formal wage and hour complaint with the U.S. Department of Labor (DOL), “el dueno”–the owner–retaliated with a harassment campaign as typical as it is illegal. He reduced Reyes’ hours, cut his wages down to $5.15 an hour and threatened to fire him or shut the factory.

What made Reyes’ predicament different from that of countless others was its solution. When the harassment began, members of Trabajadores en Accion (Workers in Action)–a workers’ rights project of the Bushwick-based community organization Make the Road by Walking–pursued its usual course of action, protesting outside the factory. But Make the Road staff lawyers, Ben Sachs and Stephen Jenkins, also did something that workers’ rights advocates, unions and lawyers had never heard of anyone doing before: They went to federal court to get a temporary restraining order against Sares, ordering the company to cease all retaliation and to return Reyes’ hours and wages to previous levels. A TRO, says Sachs, “is designed for a situation where you can’t wait. This was a perfect example. There were threats being issued and we needed immediate protection.”

The extraordinary tactic worked. Reyes got back $13,000 in overtime and damages and an additional $2,000 for lawyer’s fees. In addition, the Department of Labor investigated and ultimately ordered Sares to return $45,000 in back pay to other workers in the factory. Sachs credits the victory to “the double whammy” of a court-ordered TRO and workers protesting outside.

With government unwilling or unable to enforce labor laws for undocumented workers, and federally funded legal services attorneys barred from doing so, the task has been left to the few small, grassroots groups that organize immigrant workers. More and more, those struggling organizations are turning to creative legal strategies and attention-grabbing lawsuits, shifting the public battle away from government agencies that oversee workplace conditions and into the courts.

In what he calls “the movement,” Mike Wishnie has witnessed more suits and creative uses of the law in recent years. “When I started doing this work 10 years ago, there were almost no legal resources for these issues,” says Wishnie, who founded the Immigrant Rights Clinic at New York University’s law school two-and-a-half years ago. Now, he says, there are more organizations–and more lawsuits.

As a result, the past few years have seen a string of innovative, high-profile legal cases for immigrant and undocumented workers. In 1998, a precedent-setting win in Lopez v. Silverman made garment manufacturers liable under the Fair Labor Standards Act (FLSA) for workers’ unpaid wages even if they were technically employed by subcontractors. And in September 2000, the 318 Restaurant Workers Union used RICO, the federal anti-racketeering law, against Chinatown’s New Silver Palace Restaurant to stop owners and managers from extorting tips from waitstaff, among other labor violations. That same year, the National Employment Law Project and State Attorney General Eliot Spitzer’s office brought a case against Gristedes, Food Emporium, and Duane Reade stores for underpaying subcontracted delivery workers.

All of these cases have illustrated, publicly, the plight of immigrant workers. Big legal cases, and the heated organizing effort and worker protests that usually accompany them, make headlines and draw members to community workers’ groups. Just filing a lawsuit can rally workers to a cause, grab media attention and draw high-profile co-plaintiffs, like the sympathetic Spitzer. More practically, a win or an out-of-court settlement returns much-needed money to workers who face eviction, homelessness or hunger without it.

But novel or routine, class action or individual, civil lawsuits on behalf of immigrant workers present mountainous obstacles. Fears of deportation, firing, and wage or hour cuts make many immigrants wary of coming forward just to organize, let alone take an employer to court. And once they do, most lawsuits take a tortuously long time to come to fruition.

For the overburdened advocacy groups that bring them, civil suits can quickly become a trap. The power of legal action is too precious for small groups to ignore, yet in the end filing lawsuits cannot eliminate the need for more lawsuits. Suits can also distract activists from the real mission: changing an inadequate law or beefing up enforcement.

Lopez v. Silverman is a case in point. Organizers hoped it would force subcontractors to pay their workers fairly by bringing pressure to bear on manufacturers. But while this victory paved the way for further suits like the Food Emporium case, it hasn’t deterred clothing manufacturers from subjecting sweatshop laborers to other abuses.

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High-profile legal victories represent only a fraction of the legal endeavors to obtain justice for immigrant workers. The bulk is behind-the-scenes support work, as well as small cases brought by lawyers under the FLSA and the National Labor Relations Act, or complaints filed to the Equal Employment Opportunity Commission and the Department of Labor.

But suing under the FLSA boasts one huge advantage: It allows a worker to get back double damages. A heftier fine is more likely to keep an employer above board. By contrast, in Reyes’ case the Department of Labor offered only about $3,500 in settlement, a little more than half of what the company owed him. In many cases, even though a worker is clearly owed money, the DOL can’t or won’t pursue it at all.

Lawyers aren’t necessarily available, though. Even in New York City’s well-structured social service environment, poor immigrant workers must rely on a tiny network of pro bono and advocacy lawyers specializing in workplace violations in the underground economy. In and around the city, where there are an estimated half million undocumented workers, and 12,000 labor law violations brought to the DOL every year, there are no more than 15 working lawyers in this field.

The Asian American Legal Defense and Education Fund, a 27-year-old legal rights nonprofit, served more than 10,000 members in 1998 with six staff attorneys–a ratio of 1,666 clients to each lawyer. “Think about the number of immigrants out there and realize that our organizations get requests every day from people who have gotten screwed–and these are just the people who decide to come forward,” says Jennifer Ching of the New Jersey ACLU’s Immigrant Workers’ Rights Project. “It seems to me that whatever current litigation we can bring is only a drop in the bucket.”

Instead of farming out lawsuits to scarce attorneys, many small nonprofits have experimented with creating staff positions for lawyers, often funded by fellowships for pro-bono work. But some organizers fear that by having lawyers on staff, or by devoting too much time and energy to legal cases, they are abandoning grassroots people-power as the methodology of choice. Members may end up looking upon their organization as nothing more than a legal clinic. “People come in and say, ‘I hear you have lawyers, and I need a lawyer,'” says Sachs. “There’s a temptation to simply provide services.”

A little more than 10 years ago, the Chinese Staff and Workers Association brought a lawyer onto its staff. After a while, the organization’s focus began to shift: “People treat you just like an agency, or a law firm,” says Executive Director Wing Lam, who recently won a Ford Foundaiton leadership award for his anti-sweatshop work. After two years, the association simply did not reapply for its grant money for the lawyer, and went back to farming out legal work. “It’s about what your organization stands for,” he says.

Even so, Lam is extremely proud of the cases his organization has won and is now working on, using lawyers from the Asian American Legal Defense and Education Fund and clinics at NYU and Fordham University, as well as private lawyers and the state attorney general. “Most of the famous cases come from here,” he brags, chortling at the irony. “We have all the good lawyers!”

Some advocates have worked hard to clear a middle ground. In 1992, Jennifer Gordon founded the Workplace Project on Long Island, directing it until 1998. When the grassroots group started, says Gordon, it was “a legal clinic that was consciously intended to lead to organizing.” Immigrant workers, mostly Latino, often journeyed there for individual legal attention. But the Workplace Project has undergone its own transformation over the years. “A lot of people have unrealistic expectations of a lawsuit,” notes current executive director Nadia Marin-Molina. “When focusing on individual cases, we weren’t really solving anything but that worker’s case.” In response to these concerns, workers now enter directly into collectives within the project that are organized according to industry. That way, says Marin-Molina, workers will “immediately see that they’re part of a group.”

Gordon, who went on to receive a MacArthur genius award and is now working on a book about the relationship between the law, organizing, and immigrant advocacy work, advises using lawsuits strategically. “This isn’t a thing everyone should do,” she suggests. “It’s a question people should ask: ‘How could a legal strategy advance an organizing strategy?'”

No matter how successful particular cases may be, lawyers and organizers alike agree that lawsuits alone won’t change the system responsible for many immigrant workers’ problems. As Lam points out, the Spanish word for lawyer, abogado, means “advocate.” It’s an advocate’s job to fight for others, but a worker, he believes, needs to fight for him or herself. When they do that, he proclaims, “it’s a sort of liberation.” And the law? “That’s just a beginning,” he laughs.

Hilary Russ is a freelance writer in New York City.