Wearing a worn-out V-neck sweater over a dress shirt buttoned tightly to the top, Hong Huang is not who comes to mind when you think “labor agitator.” Several times during our interview, he quickly gets up to pour us tea. But the battle for his unemployment check has turned the 60-year-old Huang into an unassuming crusader, one of a group of Chinese immigrant workers determined to make the state give immigrant workers their fair share of unemployment dollars.
Huang was laid off last May when the DKNY garment shop where he worked, Jen Chu Apparel, started cutting back. But when he filed for unemployment insurance,
his first weekly check was for only $120. That was clearly incorrect. He had worked 80 to 90 hours a week, at $6.50 an hour, for almost five years, which his calculations say should have made him eligible to receive closer to $200.
Huang quickly realized why he had gotten shortchanged: The state Department of Labor was using only part of his salary to calculate his unemployment benefits. Like many immigrants, he had been paid half of his salary in cash, under the table, and had no way of documenting how much he had really made.
In the past, workers could turn to New York City DOL offices, and make their case, speaking in their own language, to agency clerks who were often familiar with workers’ circumstances. During the annual slowdown in the garment industry, November through February, some 300 to 500 Chinese-speaking garment workers typically file unemployment claims in just one office on Park Place in Lower Manhattan, sometimes trooping over after a factory closed and filing en masse. “Everyone knows New York’s garment industry deals in cash payments,” says Wing Lam, executive director of the Chinese Staff and Workers’ Association (CSWA).
But now, in an effort to streamline and automate services, DOL has closed the Park Place office and 14 others around the city to in-person claims. Now, almost all of the half a million people a year who file for unemployment in New York State must do so over a new phone-based system. For English-speaking workers, DOL’s new automated filing system could save time and money. The opposite is true for many immigrants; the “Interactive Voice Recording” service operates in English and Spanish only.
Two offices remain open for Chinese speakers to file in person, while the state DOL negotiates a settlement to a lawsuit filed by the Asian American Legal Defense and Education Fund (AALDEF). But for immigrants who speak other languages, the shut-down of the unemployment offices is a serious hardship. Even if they can find a translator, a larger problem remains: The voicemail is indifferent to the peculiar vulnerabilities of New York’s underground workforce. Until you have successfully navigated through the voicemail to get to a claims specialist, there is no way to tell the automated system that you got paid partially off the books, that you need a translator, that you can’t track down your employer. “It’s a system that discriminates against immigrants,” says Lam.
It’s impossible to know how many undocumented workers live in New York. “I’d say anywhere between three-quarters of a million to a million,” hazards Immanuel Ness, a political science professor at Brooklyn College who is writing a book on low-wage immigrant workers in New York City. Of all the immigrants in New York’s labor force, Ness estimates that as many as 75 percent may be paid under the table.
By law, the state is required to pay unemployment insurance, whether the worker filing the claim was paid in cash or not. In 1995, immigrants accounted for 20 percent, or $403 million, of New York State’s contribution to the federal unemployment tax.
Because of their legal status or language barriers, immigrants are far more likely to have irregular payroll circumstances. “Employers dictate the terms of employment,” says Ken Kimerling, the AALDEF attorney who filed the case. “Immigrants are more readily exploited.”
In 1999, Kimerling filed the lawsuit on behalf of all Chinese-speaking workers to prevent the DOL from closing down the Park Place office, located near Chinatown’s many garment factories. By failing to make the entire unemployment claims process–including appeals and verification–as accessible to Chinese speakers as it is to English- or Spanish-speakers, says Kimerling, DOL is violating Title VI of the Civil Rights Act, which prohibits discrimination on the basis of national origin. (Kimerling was also involved in the mid-1970s lawsuit that forced New York’s DOL to offer services in Spanish.)
Kimerling and the DOL are currently in negotiations. At the very least, AALDEF wants to get Chinese added to the phone system and for Chinese workers to have the right to a translator if complications arise. While the discussions drag on, DOL has agreed to keep centers open in downtown Brooklyn and Queens Plaza to serve Chinese-speakers exclusively. But these are just the basics; The lawsuit won’t even begin to address the larger problem of employers’ refusal to report workers’ income. “This is an equity lawsuit,” says Kimerling. “I can’t force someone to become a better administrator.”
And it won’t help immigrants who don’t speak Chinese. In a sworn court statement, Kimerling described how DOL refused to provide automated phone services in Chinese, claiming that “if they provided it in Chinese, they would have to provide it in other languages as well.”
It’s a fact the DOL’s lawyers don’t dispute. In fact, department spokesperson Betsy McCormack points out that the switch to the phones is itself a response to federal cost-cutting measures. “We are aware that there are language barriers, and we try to accommodate that as much as possible,” says McCormack. But with reductions in federal funding, says McCormack, “I don’t know that we’ll be able to meet every dialect and language in New York City.”
For Wing Lam, little will be resolved if and when DOL agrees to set up a Chinese-language automated recording. He predicts that many immigrants whose salary payments are irregular will simply be denied benefits. To Lam, DOL’s automation is nothing more than an effort to push New York City’s low-wage labor force further underground. “That’s absurd,” retorts McCormack. “We make every effort possible to assist unemployment insurance claims.” She maintains that there’s no way, given current and anticipated budget cuts, that the DOL can afford to keep the offices open.
Those little details mean a lot to workers like Huang. It’s unlikely another sweatshop or restaurant will hire him because of his age, and his wife, a thread-cutter in a garment shop, makes only $20 a day. Huang is now 60, and there is no pension waiting for him. He hasn’t been working long enough to qualify for Social Security.
In effect, the unemployment insurance Huang has been trying to claim for the last seven months is his meager pension. And he’s counting on the class-action lawsuit to help him to get it. “This is unjust,” says Huang, speaking in Chinese, with Lam translating. “I’m not going to give up.”