Carlos* has been ripped off, again. He’s a day laborer who, along with dozens of other day laborers, gets work hanging out most mornings at the Home Depot on Rhode Island Avenue NE, waiting for contractors in pickup trucks to come hire him. He may get a day’s work, sometimes a week or more, but he doesn’t always get paid in the end. It’s a regular enough occurrence that it doesn’t faze him.
This time, he’s come by the Workers’ Rights Clinic, a weekly legal clinic for low-wage workers with work-related problems, run by the D.C. Employment Justice Center out of Bread for the City in Shaw on Wednesday evenings. I’m interviewing him about the contractor who hired him for a two-day drywall job at a private home in Maryland, promising to pay him after the job was done, then never showed up with his money.
“Yeah, my buddies told me not to work for this guy because he doesn’t pay,” says Carlos.
“Oh,” I say. “You mean he’s known to pay low wages?”
“No,” says Carlos, laughing. “I mean he doesn’t pay his workers at all. Ever.”
“Oh,” I say. “Maybe you should have listened to your friends.”
“Yeah, maybe I should have!”
In and around the District, a number of groups are organizing to improve the situation of these workers. Trabajadores Unidos de D.C., a group Griffiths leads that formed out of D.C. Jobs with Justice’s Day Laborer Project, visits sites where day laborers gather like the Home Depot, the Mount Pleasant 7- Eleven, and outside homeless shelters, helping them apply for visas and drivers’ licenses. Georgetown University’s Kalmanovitz Initiative for Labor and the Working Poor has a Day Laborer Exchange Program in which students offer workers crash courses in labor rights and basic English. Carecen, the Central American Resource Center, offers legal aid in immigration and housing matters. The National Day Labor Organizing Network agitates on labor and immigration issues nationwide, pushing for the establishment of worker centers. These are established hiring halls based on a model in which day laborers can be matched with registered employers based on job skills, both parties agree to wages, and give evaluations of each other after the job.
Casa de Maryland, the region’s largest Latino services and advocacy organization, runs five such centers—in Silver Spring, Wheaton, Rockville, Hyattsville, and Baltimore—but none in D.C. As the Washington Post has reported, a campaign to found one at the Home Depot failed in 2007 when neighbors complained about the nuisance of day laborers loitering, sleeping, and sometimes urinating in public, and balked at the prospect of spending tax dollars on undocumented immigrants. Police cited racial tensions in the area between neighbors, mostly black, and day laborers, mostly Latino. D.C.’s Latino population grew 22 percent in the decade between 2000 and 2010, according to the census, and while the largest concentration of Latino residents remains in Ward 1, as D.C.’s Latino community grows, it has shifted to other parts of the District. “The don’t want us here,” says Griffiths, referring to the neighbors by the Home Depot. But he says racial mistrust goes both ways. A lot of the contractors who come to pick up day laborers are Latinos themselves, and don’t like to hire the minority of day laborers who are black. “They say, ‘Our ancestors built the Capitol and now we can’t even get a day’s work here!’ They have a point.”
The EJC was the driving force behind a bill the D.C. Council passed last year that increased penalties on scofflaw employers and required them to provide written notice to employees stating their rate of pay and regular payday. With the wage theft bill, as with 2014’s minimum wage hike and 2008’s paid sick leave bill, D.C. reflects a general trend of labor advocates pushing for protections at the state and local level in the face of federal inaction, after even relatively modest bills have failed to move through Congress.
At the Home Depot, Griffiths notes that contractors don’t abide by the provisions in the wage theft bill, such as providing notice and identification before hires: “In D.C., we have a lot of good laws, but they’re not implemented, and immigrants don’t know about them.” And even in cases where the employer is in clear violation of the law, plenty of workers are cowed by the threat of retaliation. Danny Felix, who worked as a driver for Smooth Ride, a shuttle service contracted by Amtrak, testified before the Council in favor of the wage theft bill at a public hearing last March. After not being paid overtime, Felix had filed a complaint with the D.C. Office of Wage-Hour in 2012, which ruled in his favor a year later. After the ruling, Felix testified that his employer held a conference call with all employees, announcing that someone had filed a claim against the company for nonpayment of overtime. “He said he felt betrayed,” said Felix, “and then he ended the call by stating, ‘Anyone who thinks they’re anonymous is not always anonymous.’” Subsequently, Felix’s boss switched him to a night shift, began to withhold 10 to 13 hours’ pay each pay period, and ultimately fired him.
Employers, for their part, question the scope of the problem and the appropriateness of a legislative response. Jacqueline Tully, an attorney with Jackson Lewis, a law firm that represents employers, argues that “we don’t see widespread underpayment of wages” among employers, and characterizes the Wage Theft Prevention Act as one of a “majority of rules that address a minority of cases.” “Obviously employers should pay employees,” says Tully, “but the larger effect of some of these rules and regulations can put a damper on the business a business needs to do”—and require beefing up HR and legal activities. Specifically, the law’s written wage notice provision can be a burden, she says, on companies with thousands of employees, each of whom have to countersign any changes in their salaries. (Most of the shady employers that come up in clinic cases don’t have thousands of employees or hire law firms like Jackson Lewis.) And according to her, one of the most common forms of wage theft, nonpayment of overtime, is the product of the legal fuzziness over who counts as exempt that traces back to laws that were written in the 1930s with anachronistic references to jobs like corset-makers, which inevitably produces a lot of litigation (and, in turn, drums up business for labor- and management-side law firms alike).
From a worker’s perspective, Tully allows, whether or not wage theft is a matter of a few bad apples doesn’t much matter if you’ve been ripped off by one of them. And the maddening thing is that a lot of the abuses that come up in cases are already illegal. It’s illegal to discriminate against workers for race or nationality, to retaliate against a worker for filing a complaint, to deny someone workers’ compensation. And it’s certainly illegal, under contract law, not to pay them. Employers know this. But discrimination and retaliation are difficult to prove, with the burden on the worker. In cases of theft, many workers are paid in cash and don’t have pay stubs, written schedules, employee handbooks, or any evidence to support their case. “Contracts” are verbal agreements, and witnesses to back up workers’ accounts are scared to come forward, living hand to mouth on a job they can’t afford to lose. Subcontractors who fail to pay employees blame contractors who fail to pay them. Local agencies don’t have enough investigators and translators, and cases back up or are dropped. Even if workers manage to get a payout, it might not be for years, and they reasonably figure it’s not worth the trouble. And for every one worker who even tries to assert her rights, there are dozens who don’t bother. For a shady employer, paying out one settlement—often simply the amount owed in the first place—is a reasonable cost of doing business if he gets to continue ripping off the 20 others who don’t come forward.
The EJC’s legal clinic is one of a patchwork of approaches to address worker abuse, one that includes direct legal services, petition drives and demonstrations, worker centers, worker organizing, and agitation for legislative reform. Sometimes, there will be a class-action lawsuit, such as the one in 2010 against Epicurean, a restaurant on Georgetown University’s campus that had been failing to pay them overtime. After securing legal representation by James & Hoffman, the workers received full damages.
These settlements are the equivalent of winning the lottery, however: for the workers lucky enough to secure pro bono representation and see a case through, it’s a big win, and the idea is that the lawsuits scare other employers straight by making examples out of the bad ones. But after seeing the same types of cases at every weekly clinic, the make-an-example route seems to have a limited impact for systematic change: Even if one shady employer cleans up or goes out of business, there are always others.
Chicago labor lawyer Tom Geoghegan has written about the rise of the much-maligned litigation culture (of which he is a part) as a product of the decades-long breakdown of the institutions that used to set labor standards for all workers: unions and the state. “As the state collapses and becomes more arbitrary in the enforcement of the law, all of us are more in need of tort (i.e. ‘trial’) lawyers,” he writes in The Rule of Law in Shambles. Congress cuts budgets for the agencies responsible for enforcing the law—OSHA, ERISA, the Department of Labor’s Wage-Hour Division—so it’s up to groups like the EJC, NDLON, and Trabajadores Unidos to bring scofflaw bosses to justice. And they have to pick their targets. When enforcement is outsourced to vigilantes, it becomes non-systematic, and a lot of workers fall through the cracks, particularly those who don’t earn very much, don’t speak the language, and don’t know their rights.