1Shannon Gleeson

Navigating the Bureaucracy, Searching for Justice:

The Promise & Failure of Workplace Protections

in the United States

April 2, 2014York University 

2

Institutional Landscape ofWorkplace Protections

Labor Issue Federal State Oversight?

UNION ORGANIZING

National Labor Relations Board

22 states have “Right To Work” legislation

WAGE & HOUR

Dept. of Labor- Wage and Hour Division

All states and some cities

HEALTH & SAFETY

Occupational Safety and Health Administration

24 states have approved plans

DISCRIMINATION

Equal Employment Opportunity Commission

90+ state/local partnerships

3

Standard Process of Filing A Claim

SUBMIT CLAIM to

Fed./State/Local Agency

Requirements:• Documentation• Witnesses• Statute of

Limitation• Lawyer can be

vital

ELIGIBLE Aggrieved

Worker

BUREAUCRATI

C PROCESS:• Investigation• Mediation• Hearing• Final Judgment

4

Challenges Facing Labor Standards Enforcement

• Gaps in coverage of the law

• Claims-driven enforcement mechanisms

• Insufficient enforcement resources

• Tremendous backlog

• Weak penalties for employers

• Difficulty of protecting marginal workers like

immigrants

5

Immigrant Labor in The United States

• 16% of private sector is FOREIGN-BORN

• 5.2% of private sector is UNDOCUMENTED

• Low rates of unionization

• High rates of occupational injuries, illnesses & fatalities

• Rampant wage theft

6

Paradox of the Undocumented Worker

DEPORTABLE ALIENSubject to Employer Sanctions

Surveillance Target

PROTECTED WORKERVital Part of Labor Force

Outreach Target

7

Study Objectives

• How do labor and immigration law shapes workplace experiences?• What other legal regimes matter and how?

• How do workers gain knowledge about their rights?• What role do bureaucratic brokers play?

• What are the liabilities of “lawyering” (Gordon 2007)?• What are the costs to claims-making for workers?

8

Methods

• Survey of low-wage workers • 4workers’ rights clinics in the San Francisco Bay Area

(N=453)

• Follow-up interviews • 91 workers (20%) 12-30 months later

• 5 year ethnography of workers’ compensation • State workshops• Legal aid clinic• Interview with 24 injured workers

9

Research Sites

A. Hastings Law School

B. Golden Gate University Women’s Employment Law Center

C. East Bay Community Law Center

D. Centro Legal de la Raza

E. Santa Clara University Katherine and George Community Law Center

F. Watsonville Law Center

10

Political Field of Workers Compensation Enforcement

Injured Worker

Worker Advocate

s

State Agencie

s

Insurance

Industry

Employer Advocates

Medical Professio

n

Legal Professio

n

Demographic Profile(2005-2009 American Community Survey)

SF-OAK-FR Metro SJ-SV-SC Metro N % N %

HISPANIC/LATINO (of any race) 887,198 20.9% 486,202 27.1%FOREIGN BORN 1,264,484 29.8% 655,016 36.5% Naturalized U.S. citizen 680,959 53.9% 326,817 49.9% Entered 2000 or later 320,551 25.4% 189,201 28.9%LANGUAGE SPOKEN AT HOME English only 2,395,193 60.1% 826,717 49.7% Spanish 642,952 16.1% 326, 651 19.6%EDUCATIONAL ATTAINMENT Less than 9th grade 202,286 6.8% 91,854 7.7% High school (or equivalent) (X) 87.2% (X) 86.0% Percent bachelor's degree or higher (X) 43.5% (X) 44.5%PERCENT UNEMPLOYED 7.7% 7.9%INCOME Median household income (dollars) 75,707 (X) 86,286 (X)

Median family income (dollars) 91,458 (X) 99,794 (X)

Per capita income (dollars) 39,862 (X) 39,369 (X)

12

Survey Distribution

Survey # FBFB - NonCitz

FB – NonCitz - NonLPR Male

SJ 237 194 146 107 128

OAK 61 58 51 42 32

SF 97 51 24 9 56

Berkeley 58 28 21 12 26

SF – GGU 9 5 5 2 1

Watsonville 7 7 5 2 2

469 (100%)

343 (73%)

252 (54%)

174 (37%)

245(52%)

Racial Self-identification(not mutually exclusive)

white black latino api other

SJ 13 5 191 20 8

OAK 0 0 61 0 0

SF 20 20 30 21 8

Berkeley 12 16 20 7 4

SF – GGU 2 2 4 2 0

Watsonville 0 0 7 0 1

47(10%)

43(9%)

313(67%)

50(11%)

21(4%)

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Key Sample CharacteristicsAll

Male

Age (#)

Educ: Less than HS

Eng: Do not speak at all

Ind: Restaurant

Ind: Construction

Cash Payment

Union

Still Employed

0 10 20 30 40 50 60 70

49.6

46.5

15.9

3.2

8.1

5.3

3.2

18.7

21.2

60.0

37.5

44.7

24.7

27.6

11.8

24.7

5.3

20.0

Undocumented (170) Documented (282)

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Have You Ever Experienced…All

Paid less than promisedPaid less than minimum

Denied breakProblems getting paid/late

Forced to work overtimeDenied time off (illness)

Denied time off (personal)Unsafe conditionsInjured on the job

Denied workers' compensationThreatened for complaining

Threatened for organizingSexual harassment

Verbal abuse

0 10 20 30 40 50 60 70 80 90 100

26.5

13.8

91.5

43.5

32.2

30.7

35.0

45.2

56.9

15.9

39.6

9.5

22.6

65.761.2

Undocumented (170) Documented (283)

16

Legal Claim TypeAll

Wage and Hour

Discrimination

Sexual Harassment

Unemployment

Workers' Compensation

Other (inc. Wrongful Term)

0 10 20 30 40 50 60 70

27

26

4

11

3

31

59

20

3

1

3

19

Undocumented (170) Documented (283)

17

Work ExperiencesForeign-Born

Employer threatened to call immig

Immigration raid at workplace

Language proficiency negatively affected work

Treated unjustly b/c immigrant

Treated unjustly b/c immigration status

"Workers who don’t have papers are more targeted for workplace abuse"

0 10 20 30 40 50 60 70 80 90 100

3

7

39

50

22

79

2

1

50

69

64

92

Undocumented (170) Documented (161)

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Claimant Has Ever Experienced Wage And Hour Violation

Predictor Log Odds SE P valueMale .079 .241 .743

Age -.156 .067 .020

Age Squared .002 .001 .034

Education: <HS .059 .307 .848Do not speak at all -.489 .437 .263Industry: Restaurant .762 .417 .067Industry: Construct. 1.588 .766 .038

Cash Payment 1.642 .755 .030

Union -.170 .321 .596

Undocumented .602 .318 .059

White 1.053 .443 .017

constant 4.368 1.535 .004

N 450

19

Claimant Talked Directly To Employer

All Claimants - Talked to Employer

Wage and Hour Claimants - Talked to

Employer

Log Odds SEP

valueLog

Odds SEP

valueMale -.015 .220 .944 -.051 .418 .903Age -.042 .053 .434 -.039 .099 .696Age Squared .000 .001 .663 .000 .001 .798Education: Less than HS -.273 .263 .298 -.864 .436 .047Do not speak at all -.119 .368 .747 .129 .533 .808Industry: Restaurant -.149 .307 .628 .250 .499 .616Industry: Construction .536 .466 .250 .610 .643 .343Cash Payment .085 .379 .822 -.325 .459 .479

Union .194 .318 .541 .0991.14

3 .931Undocumented .352 .276 .202 .022 .493 .964White .543 .390 .165 .228 .853 .789

constant 2.0771.20

9 .086 2.6562.07

0 .199N 450 175

20

Communication with Employer Following Violation

Talked to Employer - Threatened

Did not Talk to Employer - Afraid

Log Odds SEP

valueLog

Odds SEP

valueMale -.198 .442 .654 -.600 .591 .310Age -.138 .088 .119 -.069 .127 .588Age Squared .001 .001 .152 .001 .001 .487Education: Less than HS .067 .527 .899 .624 .598 .297Do not speak at all 1.430 .585 .015 1.548 .739 .036Industry: Restaurant 1.161 .499 .020 1.647 .714 .021Industry: Construction -.818

1.117 .464 (omitted)

Cash Payment .485 .609 .425 -.733 .938 .435

Union -.010 .701 .989 -.9581.14

4 .403Undocumented -.597 .569 .294 .320 .664 .629White -.041 .809 .959 .865 .931 .353

constant .4581.93

0 .813 -1.0562.93

0 .718N 320 123

21

Claimant Tried Going Directly to Government Agency First

Log Odds SE P valueMale .257 .207 .214Age .075 .051 .140Age Squared -.001 .001 .190Less than HS -.187 .253 .460Do not speak at all .442 .347 .204Restaurant .115 .292 .694Construction .037 .395 .925Cash Payment -.741 .369 .045Union .402 .301 .181Undocumented -.328 .261 .209White .142 .336 .674Still Employed -.746 .261 .004Wage/Hour .609 .235 .009constant -2.262 1.140 .047N 450

22

Multivariate Findings (SUMMARY)

• Risk of wage theft• Restaurant, Construction, Cash, Undocumented, White

• Threatened after confronting employer directly• Non-English speakers, Restaurant workers

• Did NOT talk directly to employer first – due to fear of retaliation• Non-English speakers, Restaurant workers

• Avoided approaching government agency directly• Cash payment• Workers who are still employed by offender• Claim types other than Wage/Hour

23

Follow-up Interviews

• Constellation of work violations require triage

• Long time-table of justice

• Far-reaching potential of retaliation

• Gaps in the coverage of the law

• Steep burden of evidence

• Multiple gatekeepers with conflicting interests

24

Key Questions

• How do low-wage workers perceive justice in the process of filing a workplace violation claim?

• How do immigrant workers articulate their standing before the law and as rights bearing members of society?

• Two orientations: • AT FIRST -- More affective stance rooted in general

convictions of right and wrong; focused on the original injury.

• OVER TIME -- A turn to a more rational approach to their claim that weights the costs and benefits of persisting in the litigation

25

Findings Overview

• Establishing a Claim

• Navigating Claim• Demanding Time & Respect• Importance of Access to Legal & Medical Expertise

• Evaluating Claim • Time & Opportunity Costs• Deciding Whether to Move On• Deciding Whether to Keep Fighting• Evaluating the Fallout

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1. Establishing Claim

“I ended up calling an employment lawyer. He didn’t call back. I then called another one. They didn’t call back.” … “it just seemed like a dead end.”… “If he wants to give me no hours next week, there’s nothing I can say because I’m an independent contractor. I’m paid under-the- table. And I didn’t meet any of the criteria…So I just didn’t have any power.” – Dana

“When you know there is an injustice, when your rights have been trampled, you have to speak up.” … “They wanted $4-5,000, and that that time all I had was my little savings, which I needed to pay the house, which is always my biggest worry.” … “It was logical, I needed something to live off of.” -- Melita

“I also stupidly didn’t keep notes. I thought she would see (my work), but she didn’t… I took (to the law center) what notes I had, but they weren’t conclusive of discrimination of any kind…. They didn’t say such and such day, such and such time, this happened, or show that one person was treated differently from another, but I didn’t think ….” -- Ramon

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2. Navigating Claim

• Long process of navigating a administrative bureaucracy• Lack of access to key brokers and experts• Language and communication barriers • Time, monetary, and emotional costs

• Reliance on “objective evidence,” & technocratic experts• versus claimant’s voice/perspective

• How far and hard to fight?• Time and opportunity costs • Mediation and settlement process

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2 A. Demanding Time & Respect

• “The clinic told us that we had let too much time pass for our demand…they said they couldn’t help….I don’t understand, was it time from when they owed us the correct benefits or the time when they should have given us back the check stubs (that the union representative took)…it was like two or three months.” -- Mario

• “You wait for hours to see somebody even with an appointment.” …. “If she spent five minutes with anybody that was a very long time… You were like cattle, you were sitting in a long row of chairs outside of her office… she would leave the door (open), like HIPPA privacy laws didn’t apply to her.” -- Eleanor

• “It was humiliating. They make accusations, then they walk away, and to them, it’s just like, you win some, you lose some.” -- Ben

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2 B. Accessing Material & Files

• “After one month, my lawyer’s office called me saying that he has the report available… he simply just denied your sickness is not work-related. ….When I read through his report, so many mistakes. … someone else’s name … he wrote the dates wrong. …then he cited (that) because I was born and raised in China and went through the cultural revolution and went back to work in the countryside… what he concluded is my sickness is because of my personality.” – Wendy

• “I asked for an interpreter…the experience was horrible, to not be able to express with the proper words of one’s own what I wanted to say… to be sincere, the person who went to translate …I don’t feel that they expressed everything I wanted to say.” -- Reyes

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3. Evaluating Claim

•Keep Fighting?

• Settle?

•Move On?

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3 A. Time & Opportunity Costs

• Time for appointments, etc.• Missed Earnings, Debt• Time away from family

• Future Orientation• In the U.S. • Back Home

• Impact on current job• Unable to ask for time off• Fear of being branded troublemaker

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3 B. Moving On

• “To tell you the truth, they wore me out…I saw that there was not much else that could be done.” …. “He (insurance attorney) said that it was my fault. It was uncomfortable. He was direct, aggressive, and intimidating. I knew that there was no way I was going to get totally better, and that there wasn’t more to do.”… “Now I just want to keep my job and stay healthy.” … “I complete the basic requirements. I show up, put in my 8 hours of production time.” -- Merlin

• “I decided that I have to live my life.” -- Margaret

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3 C. Deciding To Keep Fighting

• Disagree with logic of settlement• “I don’t want to sell my health!” – Marta

• Refusing to accept that a case has been closed• “I went to the radio station to see if they could recommend

me to someone… I went to the television, they wouldn’t listen, I tried to talk with the EEOC attorney… they’ve all ignored me.” -- Alfonso

• Cautiously and selectively empowered• “Let this be a lesson to you this time, but the next time I will

take you to court, take all that you have, and leave you in the street begging.” -- JJ

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3 D. Evaluating The Fallout

• “One is here without papers, and is fearful, to express or demand their rights, given our legal status, and well, it was hard …In reality, there was no resolution, well, for me it was frustrating … although the agency helped us… they didn’t act or orient us enough so we could come to an actual monetary settlement…. He (the owner) just declared bankruptcy and the case was closed.”…(attempting to return to EEOC)… “We only have a consular ID… so they never let us in.” – Lucrecia

• “I regret it all… “No, they didn’t give me my job back. …This man went to jail, I filmed it, took all the proof to the police, everything was proven…and now, I wonder, why did I speak up? … I ended up in all sorts of problems, so now I wonder, why did I speak up? I should have stayed quiet, I would have kept my job, my economic state would have been better, because that was a good job.” … “My son’s rapist went to jail and is now out. My aggressor went to jail and is now out. But I am left here, with nothing.” -- Gloria

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Summary I

• The Limits to Lawyering

• Bad Jobs On The Low-road• 42% safety training• 53% received a raise• 38% provided sick leave• 46% provided paid vacation. • 39% health insurance

• At-will employment: the elephant in the room

36

Summary II

• Stages of Claims-Making• Can I move forward, do I want to file a claim?• Do I want to continue fighting? Should I settle?• What have I gained or lost? Would I do it again?

• Demobilizing effects of rights protections/institutions• Evolving perspective on justice • Cautionary tale for future claims

• Agency of claimants• Expansive definitions of Justice & Citizenship beyond the

law

37S p e c i a l T h a n k s g o t o :

Mike Gaitely, Florencia Valle-Miller, Daniela Urban, Patty Salazar,

Marci Seville, Ruth Silver-Taube, Marisol Escalera, Jenna Grambourt, Nick Webber, Adriana Melgoza, Annie Lin, Brian Jimenez, Jimmy Chiu, Hannah Fishman, Claudia

Medina, Iris Casanova, Mariela Rodriguez+ all the workers who shared their story with me

Shannon GleesonAssociate ProfessorLatin American and Latino StudiesUniversity of California, Santa Cruz

sgleeson@ucsc.edu