https://calmatters.org/california-divide/2023/09/workplace-retaliation-california-labor/
As more Californians allege on-the-job violations, labor groups say bosses retaliate
SEPTEMBER 1, 2023 In June 2020, as California was deep in the throes of the COVID pandemic, Lizzet Aguilar raised the alarm about working conditions at the Los Angeles McDonald’s where she worked.
Joined at times by her coworkers, Aguilar filed three safety complaints with the state and the county alleging that workers were forced to work without masks and that managers failed to notify them when they were exposed to the virus. The workers staged strikes over the summer outside the Boyle Heights restaurant, demanding improvements.
That September Aguilar and three coworkers were fired. A citation from the state Labor Commissioner’s office against the business followed, along with two years of appeals. This past February the case finally came to a close: A state hearing officer ruled the workers were owed back wages and should be rehired.
The case, whose resolution the Labor Commissioner announced in April, was one of the state’s rare public crackdowns against retaliation — the act of employers firing workers, changing their schedules, cutting their hours or otherwise disciplining them for making legitimate complaints about working conditions.
Retaliation is banned by dozens of California labor laws, but workers’ rights advocates say it’s a common barrier to low-income laborers organizing or demanding more from their jobs.
Now labor activists are pushing for the state to more swiftly resolve retaliation claims, and for the Legislature to pass a measure making it easier for workers to win them. It’s a move business interests oppose, warning it could subject employers to unjustified claims.
Amid an upswing in labor activism, claims of retaliation are rising across the state, CalMatters has found.
California workers last year filed an average of 706 claims of workplace retaliation per month with the state’s Labor Commissioner’s Office, which enforces many labor laws including those banning wage theft.
That’s a 50% increase over the pre-pandemic monthly average in 2019, according to a CalMatters analysis of data obtained through a public records request. In the first three months of this year, workers averaged more claims per month than the monthly average last year.
Workers’ advocates and the state say the increase is driven in part by workers’ increasing awareness of their own labor protections.
“Why this retaliation happens is workers standing up for themselves, standing up for their rights, and owners and companies putting those workers down, deterring the other workers by this increased fear,” said Jules Yun, who organizes restaurant and retail workers for the Koreatown Immigrant Workers Alliance, an advocacy center in Los Angeles.
Those who do complain of retaliation may wait years before the state investigates or hears their claims.
The number of retaliation claims awaiting investigation grew more than five-fold from 2018 through 2021 — to 3,378 cases, according to public reports. By April 2023 the backlog had grown to 4,878 claims, the Labor Commissioner’s Office told CalMatters.
And claims are hard to prove. The Labor Commissioner’s Office in 2021 issued 237 decisions on retaliation claims, most of which had been filed in prior years. Officials dismissed 228 of those claims for a lack of evidence, deciding in the worker’s favor in just nine cases.
A rare win on workplace retaliation
After being fired from her McDonald’s job, Aguilar’s debt piled up and her household income dwindled.
She and her 8-year-old son relied more on her husband as the primary breadwinner, as inflation rose during the pandemic. Aguilar later got a job at another McDonald’s. It was a longer commute, and the cost of gas ate into their budgets.
“I thought, ‘I can’t believe this is happening to me,’” she said. “There are needs in the home. I have to pay for gas. I have to pay bills.”
She was on her way to work at the newer job this year when she learned of the Labor Commissioner hearing officer’s decision in her favor.
The officer ruled that the owner of the Boyle Heights franchise location, R&B Sanchez, Inc., along with its owners Beverly Sanchez and the late Robert Sanchez, and their nephew who was the human resources manager, had illegally retaliated against the four workers for making a legally protected workplace safety complaint.
The state ordered the defendants and the late Sanchez’ estate to pay the four workers back wages and the restaurant’s new owner, DRS Hospitality, LLC, to rehire them. Aguilar, the office ruled, was owed more than $14,700 for the lost hours, plus back pay and $10,000 in penalties.
“I almost screamed throughout the McDonald’s, ‘We won, we won!’” she said. “It was a tremendous joy.”
The money will help Aguilar pay down debts she said she accumulated over months of having lost work.
An attorney representing the Sanchezes and the company did not respond to multiple requests for comment. Reached by phone, DRS Hospitality CEO Dean Sanchez — a relative of the former owners whom the state also listed in the case as an R&B Sanchez company representative — declined to comment, saying he was only “an employee at the time all that happened.”
Rising claims
The labor groups’ advocacy around retaliation targets a central dynamic in the employee-employer relationship: the fear of losing a job.
That power imbalance is a persistent bar to enforcing workplace protections, labor groups say, despite California having some of the strictest labor laws in the nation.
“Retaliation is the thing hanging over so many people in the workplace that prevents us from actually accessing the rights that we have on paper,” said Nayantara Mehta, director of the National Employment Law Center’s worker power program. The center surveyed 1,000 California workers of various incomes and found 38% said they had experienced a workplace violation, but only 10% had reported it to a state agency. Many workers said fear of retaliation would prevent them from reporting a violation, according to the center’s report released last November.
Sandra and Veronica Barreno felt that fear after complaining this March that their employer had underpaid them for overtime work.
The sisters, immigrants from Guatemala, said they had previously been involved in workplace activism with the help of the Koreatown workers alliance, demanding rest breaks and sick time at the same restaurant. Veronica, who in Dec. 2021 filed for a restraining order against a coworker, said in her petition that she had repeatedly reported workplace sexual harassment to management. The next month, managers agreed to investigate her complaints and change both workers’ schedules, according to a letter that appears to be from management, which the workers alliance shared with CalMatters. (The alliance also shared a copy of an apparent no-contact agreement signed by Veronica and the co-worker, after which court records show that she withdrew her petition for the permanent restraining order.)
This spring the sisters filed a lawsuit against Hong Kong Banjum, the restaurant that employed them as cooks and dishwashers, alleging wage theft. In a court filing, CEO Min Kyung Jeong denied the accusations, saying the sisters were paid for all hours worked and given rest breaks. Jeong and her attorney did not respond to several CalMatters’ emails and phone calls requesting comment.
The day after the suit was filed, Sandra told CalMatters, the manager was waiting for Sandra with two other workers when she arrived at work.
For part of the conversation, several organizers with the worker center accompanied Sandra. After the manager, Sandra and the organizers talked about the lawsuit, the organizer said, they left. Sandra recalled that she felt frightened by the conversation and wanted to go home.
But Sandra said her employer told her that if she left work early that day, she wouldn’t have a job.
She called the Koreatown worker center organizers back crying, Yun said, and repeated to them what she said the manager had just told her. The organizers returned. “We were comforting Sandra and we were encouraging her to stay a couple more hours,” Yun said.
Sandra said that, fearful of losing her job, she worked all day. Veronica has since left the restaurant, and Sandra said she has thought about it too. But she added that she hopes the lawsuit can improve things, so she wants to see it through.
“We endure so much because we fear that any other job we find would be the same,” Veronica said. “My sister and I don’t have an education. We don’t speak English. And we’re afraid that going somewhere else we’ll be intimidated.”
Veronica also told CalMatters that she had previously had some hours cut and tips taken after making complaints about workplace conditions at Hong Kong Banjum restaurant. Yun said Veronica reported both to worker center organizers; internal documents from the worker center, shared with CalMatters, indicate that Veronica told organizers she wasn’t being given tips on certain shifts.
But the lawsuit does not include allegations of retaliation — the Barrenos’ lawyer said they would be hard to prove. Nor have the sisters filed a retaliation complaint with the state — worker center organizers knew of a significant backlog, Yun said.
‘A chilling effect?’
In California, the Labor Commissioner handles cases in which workers claim employer retaliation for certain legally protected activities, such as lodging complaints about unpaid wages or unsafe working conditions, taking sick leave, or reporting wage discrimination based on race or gender.
Other state and federal laws ban retaliation for reporting harassment or discrimination, or for organizing a union.
The Koreatown workers alliance, the National Employment Law Center and a group of other worker centers have sponsored a bill they hope will make it easier for workers to win state retaliation claims.
The measure, Senate Bill 497, would direct the Labor Commissioner’s Office and California courts to assume employers are illegally retaliating if they fire, demote or cut the hours of a worker who in the past 90 days has made a wage claim or a complaint about unequal pay.
The employer would have the burden of proving that the disciplinary action is justified and not retaliatory.
Under current state law, workers must prove their employer’s actions were retaliatory to win their case. Then the state could fine the business or force the employer to pay back pay for an illegal firing.
The bill would direct some of the fines to the wronged worker.
Yun said the bill could encourage more workers to organize themselves to make workplace demands together: “It won’t eliminate all the fear, of course, but it is one more step.”
Business groups including the California Chamber of Commerce oppose the measure, arguing it would invite frivolous retaliation claims.
At a July hearing before the Assembly labor committee, Courtney Jensen, a lobbyist working for the Chamber, said California courts already consider the timing of a disciplinary action. If a worker was fired a day after making a complaint, most judges would agree that’s retaliatory, she said.
“Our concern is when you start to get out 60, 90 days that’s when judges tend to look at other circumstances,” such as whether anything happened in between that time or whether the worker had a pattern of other behavior, Jensen said.
She also said businesses are worried the Legislature is setting a precedent of making it harder to discipline employees for longer periods of time. Last year, for example, Newsom signed a bill making it easier for farm workers to unionize that included a provision allowing employees to more easily claim retaliation if they are disciplined during the duration of a union campaign — a period of time that could be months or even years.
These concerns killed a similar measure the Legislature passed in 2002. That bill was an effort to encourage workers in the underground economy to come forward about labor violations.
Then-Gov. Gray Davis vetoed that bill at the urging of employer groups and his administration’s Department of Industrial Relations, which houses the Labor Commissioner’s Office.
Opponents argued then that workers could stave off justified firings by filing labor complaints ahead of time. Davis wrote in his veto letter that the measure would have “a chilling effect on a supervisor’s willingness to legitimately discipline problem employees.”
The current retaliation bill has passed the Senate and has passed easily through committees in the Assembly, where it awaits a floor vote. Gov. Gavin Newsom’s office refused to comment on it.
State system backlogs
The same understaffing plaguing the Labor Commissioner’s system for hearing wage theft claims also has grounded its Retaliation Complaints Investigation unit to a near halt, workers’ attorneys said.
In 2022 nearly a third of the unit’s 60 positions were vacant. The Legislature has since added funding to grow the unit to 94 positions in the next year, but the office’s employees have complained of slow hiring and persistent vacancies.
Representatives for the Labor Commissioner’s Office said their increased outreach to workers about labor rights may be in part driving an influx of retaliation claims. The office said it’s “developed different approaches to help process the increase in case filings,” including engaging with employers early to warn against retaliatory actions and holding settlement conferences to resolve claims faster.
After a worker files a retaliation claim, the Labor Commissioner’s Office decides whether to investigate it or dismiss the case.
Unlike with wage theft claims, the office is not required to hold a hearing for every retaliation claim — although it could — so the state doesn’t track how long it takes to hear workers’ cases, a spokesperson said.
The state told attorneys this year it is hearing retaliation cases from five years ago, said Amy Yu, an attorney at the Neighborhood Legal Services of Los Angeles, which represents workers.
Clients often give up when cases drag on. Yu filed a claim on behalf of a worker in early 2021 and heard nothing from the Labor Commissioner’s Office until the end of 2022, she said.
“The client already vanished,” she said. “The case is no longer viable.”
Like in other labor cases, resolutions are slow even when workers win their cases.
Aguilar has not yet gotten her old job back. She was asked to re-apply, she said, and is waiting to be called to the store for orientation. But she remains determined to speak up for low-income immigrant workers, like herself.
“I hope that by raising my voice things will change, not just for workers in fast food, but also other industries,” she said, “because it’s not just us who go through this. There are thousands who go through similar situations.”
댓글 없음:
댓글 쓰기