3/22/10 The Gambit – Stolen Paychecks
March 22, 2010
by David Winkler-Schmit, The Gambit
Immigrant workers have done much of the post-Katrina rebuilding in New Orleans – but their legal powerlessness has left them vulnerable to wage theft.
Many people depend on Santos Alvarado: his wife, their 5-month-old baby in New Orleans, and the couple’s three other children living in his native Honduras. Alvarado has spent the last four years as a day laborer rebuilding homes destroyed in the aftermath of Hurricane Katrina, sending money back to Honduras every month for his kids’ tuition, food, clothes and other neccessities.
So last May when a construction contractor refused to pay Alvarado for more than a month’s work, his life unraveled. His landlord threatened eviction, and his children were forced to leave school.
Alvarado confronted his boss. The contractor strung him along, he says, promising to pay Alvarado in a few days. But when payday arrived, the contractor was nowhere to be found, and the many voice messages Alvarado left on his boss’s phone went unanswered. Finally, he spoke with his employer, who told Alvarado to go to a house on Frenchmen Street the next morning, where someone would bring him a check. Alvarado waited all day in front of the house. No one ever came.
“I felt horrible,” Alvarado says through an interpreter. “We were so desperate because the owner of the apartment we were living in gave us an ultimatum – she had given us only two more days to pay.”
The landlord kept her promise and kicked out Alvarado and his then-pregnant wife.
The contractor committed what is commonly referred to as wage theft, and though it has existed in various forms in New Orleans for many years, studies indicate it has skyrocketed since the levee failures, paralleling the city’s influx of immigrant workers, both documented and undocumented.
Eighty percent of New Orleans Latino immigrants surveyed for a 2009 study by the Southern Poverty Law Center, a nonprofit civil rights organization, reported not being paid for work performed. The findings mirrored the results of a Congress of Day Laborers survey, which interviewed 304 workers, 79 percent of whom reported wage theft.
Many of these laborers moved to New Orleans from their native countries following the levee failures and provided a steady-but-undocumented workforce for rebuilding the area. Allison Plyer of the Greater New Orleans Community Data Center says since estimates are based on immigration records and Internal Revenue Service tax filings, it’s difficult to know the size of New Orleans’ Latino population.
Like many day laborers, Alvarado finds work by standing outside a business and waiting – in his case, a Shell gas station on the corner of St. Claude Avenue and Franklin Avenue. Interviews and hiring take place in a manner of seconds: a truck pulls up, the driver wants five people for painting and demolition work, and those lucky enough to jump in the truck’s bed are hired. No payroll forms are filled out; a verbal agreement is the only guarantee these laborers will be paid.
With a plentiful and cheap labor supply, this kind of arrangement has resulted in construction projects taking place faster and families returning sooner to rebuilt homes. But it also has produced more crooked contractors. Workers know very little about their bosses and are strung along with promises of compensation.
“Many employers don’t give out all of their accurate information,” says Jacinta Gonzalez, a Congress of Day Laborers organizer. “For day laborers, contractors will just pick up workers, and tell them, ‘My name is John.’ They leave people on the job working, and then disappear on payday.”
When workers demand payment, employers retaliate with threats to report them to U.S. Citizenship and Immigration Services or the New Orleans Police Department (NOPD), Gonzalez says. She says many documented and undocumented laborers are afraid of authorities because the workers don’t speak English and have heard stories of others who have been arrested and deported. At a press conference, Mayor Ray Nagin and NOPD Superintendent Warren Riley tried to quell these fears, saying the NOPD will not ask the immigration status of crime victims or witnesses.
That’s not always the way it works, Gonzalez says.
In November 2009, a worker named Jose Mejia Castro asked for unpaid wages from his former boss, contractor Woodrow Randall. What occurred next is disputed. According to a Municipal Court affidavit given by NOPD officer Carolyn Dalton, Castro became angry and screamed at the “victim.” In another affidavit by officer Tony Burrell, Randall pushed Castro into a car. Neither officer filed a report, but both men were issued summonses for disturbing the peace.
Castro gave a third version of the incident when he filed a complaint with the NOPD’s Public Integrity Bureau. When Castro requested his money, he says, Randall threatened him with a hammer and then pushed Castro into the car. Castro called NOPD for help, but when Burrell and Dalton arrived, they interrogated Castro about his immigration status. Gonzalez was also at the scene, and she reminded the officers of Riley’s statement that immigration status was irrelevant.
“She literally said, ‘I don’t care what Riley has said, because I’m giving him a citation,’” Gonzalez says Dalton told her.
It remains a verbal, not written policy, according to Janssen Valencia, NOPD’s official liaison to the Hispanic community. Valencia says he hasn’t seen anything in writing that officers shouldn’t ask about a victim or witness’s immigration status, but adds it is considered Riley’s verbal policy.
“He made an announcement with it,” Valencia says. “The mayor was with the superintendent when he announced it. I haven’t seen anything in writing with it; all I know is he made a presentation on it.”
In 2009, concerned groups began working on an ordinance that will make wage theft a crime. Councilman Arnie Fielkow is spearheading the effort and says the legislation has been delayed because there are two opposing matters involved: illegal immigrants and wage theft. Proponents for criminalizing wage theft, however, say immigration status shouldn’t enter in the equation, and the cops, public and victims need to understand that. Under current law, civil courts handle wage theft cases, which are considered disputes.
Randall didn’t appear for his court appearance, and a warrant has been issued for his arrest. The charge against Castro was dropped.
Jennifer Rosenbaum, an attorney for the New Orleans Workers’ Center for Racial Justice, assisted Castro with his complaint and has been working on the wage theft legislation. She says a new law would give cops direction.
“An ordinance would make it very clear that if the police are called to a situation where someone’s asking to get paid,” Rosenbaum says, “that in fact, the ticket goes to the employer who hasn’t paid the employee properly.”
Workers can take bosses to New Orleans Civil District Court for back wages under various state and federal statutes, and Rosenbaum says the law clearly states immigration status cannot be discussed. She adds, however, the cases take a long time, not all employers are covered and usually there isn’t much money involved, so it’s difficult to find a lawyer willing to take the case.
Not everyone is convinced making wage theft a crime is the best solution. Martin Gutierrez, director of Neighborhood and Community Services for Catholic Charities, has been involved in the draft legislation, and is concerned how the ordinance will booster immigrants’ confidence to report these incidents, and if the law will be enforced. He says the current civil remedies aren’t working, and supports a new ordinance, “whether it’s criminal or civil.”
Florida’s Miami-Dade County recently adopted a new wage-theft law that makes it a civil violation, but if a hearing board finds in favor of the victim, it triples the back wages’ amount. Gonzalez applauds the Miami law, but adds that considering how often wage theft occurs in New Orleans – not just to immigrants, but to many low-wage workers – the city needs a law that “has more teeth.” Numerous cities, including Denver, Kansas City, Kan. and Austin, Texas have already enacted criminal ordinances against wage theft.
Fielkow’s staff has been coordinating with the various stakeholders to craft legislation that the council will approve. He says balancing immigration laws versus empowering victims is an issue his office has wrestled with.
“That’s part of the reason it’s taken so much time,” Fielkow says. “How do we resolve these two competing issues? Other cities have done it.” He adds that to ensure a wage theft law is enforced and supported, he won’t introduce an ordinance until Mayor-elect Mitch Landrieu takes office in May and a new police chief is appointed.
Meanwhile, Rosenbaum says wage theft continues, but the lack of a formal NOPD policy, as well as employers’ threats to call immigration services and NOPD have dampened immigrants’ willingness to report it.
“It’s not the police’s job to enforce immigration laws,” Rosenbaum says.