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Day laborers win court case against contractors

Isabel Estrada-Portales / AFP
05/27/2005

Héctor Cabrera (not his real name) says he spent some 110 hours digging trenches for Mega Telecom munications, a Virginia Beach-based company, and has yet to be paid for them. This is not the first time it happens to him, or to others, but this time he fought back... and won.

“Despite all the controversy surrounding the day labor issue in Woodbridge,
VA, almost everyone can agree that when a person does a day’s labor, he or she should be paid by the contractor for the work that was done,” says Nancy Lyall, Legal Coordinator for the Woodbridge Workers Committee. “But that is not always the case for many workers.”

Cabrera is suing Mega Telecommunications as one of eleven workers that state that they dug trenches for Mega Telecommunications on a Verizon project in northern VA and were not paid. Cabrera says he worked 10 hours a day for 11 days in February of this year, but has yet to be paid. He, as well as the other ten, was hired by James and Sonny Webb of Mega Telecommunications.

Lyall said that she made several phone calls to Sonny Webb who repeatedly assured her that the workers would be paid. “But thus far the workers have not.”
A second case involves Mike Scruggs, a local contractor in Woodbridge. In that case, three workers are suing for pay they say Mr. Scruggs owes them for 115-125 hours of work completed in the spring of this year. “Mr. Scruggs, who was contacted by phone has refused to pay,” says Lyall.

The last case is being brought against Miguel Darío Pérez, another local Woodbridge contractor. A worker is suing Mr. Pérez for one week’s worth of pay from February of this year.

According to Lyall, these three cases represent just a small portion of the many cases presented to the Woodbridge Workers Committee over the last two years.
Phone calls and letters are sent to the contractors to attempt to resolve the cases outside of court, Lyall explained. About 1/3 of the cases are settled without going to court. But, Lyall says, the majority of contractors who initially refuse to pay their workers continue to be unresponsive.

“It is the hope of the Woodbridge Workers Committee that if court action is used in some of these cases contractors will get the message that they need to pay the workers for the work they did,” concludes Lyall.

The larger issue in the Region
There are a few factors that influence the capacity of workers to win in these cases, according to Kimberly Propeak, director of advocacy at Casa de Maryland, a Takoma Park, MD, nonprofit that works with Latino immigrants.

Representation is an important part, because although these cases tend to be clear-cut, according to Propeak, attorneys often make standard arguments, such as that the worker was an independent contractor and not an employee.
“Unfortunately, in cases where the workers don’t have an attorney and the employer does, a judge unfamiliar with the law can sometimes not elicit the appropriate facts to defend against such an analysis,” says Propeak.

Also, the level of proof affects the winnability of a case. “Workers don’t need a written contract and it is the responsibility of the employer to create records, but a workers’ case is improved when they have kept written records of the hours they worked and they have witnesses.”

Tim Freilich, Managing Attorney for the Virginia Justice Center, an organization for the defense of workers, sees a good chance of winning for the workers.
Freilich believes, one of the biggest problems is that “Employers exploit workers regardless of if they are undocumented or not. Many of the contractors believe that if a person can’t speak English, she or he won’t fight for their rights.”

Freilich advises that workers protect themselves by asking for the name and address of those who employ them. “If the contractor doesn’t want to share that information, you should think twice before taking that job.”
However, day workers in Maryland think that if you ask so much they wouldn’t employ you, because “employers are afraid themselves of being caught employing illegal workers.”

That should not be a concern to employers on a wages issue, “because it doesn’t even enter in the discussion of the case,” says Freilich. “When there is a discussion of wage issues, the judge only cares about three questions: if the employer said he would pay for the work, if the worker did the work, if the worker was paid or not.”

“The immigration status of a worker seeking unpaid wages is absolutely irrelevant,” says Propeak, attorney for these cases tend to be clear-cut, Casa de Maryland.

“This position has been reiterated by the Supreme Court as little as four years ago. While we have seen a series of decisions where the courts are looking more seriously about the issue of immigration status, it is a very clear-cut rule that not paying workers for work that they have performed is unlawful, regardless of the immigration status of the worker.”

“In short,” says Propeak, “these cases are very winnable and CASA wins them the vast majority of the time.”