Immigrant workers in Durham said they were cheated. A year later, they’re getting paid
Corrected on February 5, 2020. See story for details.
They’d spent one, two, even three weeks clearing work sites and disposing of scrap while they cleaned apartments under construction.
But when the job was unexpectedly canceled, the group of 20 workers — 17 of them women, originally from Mexico, El Salvador, Honduras and Chile — went unpaid for the combined 1,300 hours they had put in.
With a lack of bargaining power and knowledge of their options — along with limited English and fears of retaliation or deportation — the group of seasonal immigrant workers in Durham had few reasons to believe their employer would settle up.
Almost a year later, the unexpected happened. The workers successfully recovered the wages owed to them by the Durham construction cleaning company they worked for. They received half of the money in December. The second half is supposed to be paid by Feb. 1.
With the help of Siembra NC, a Greensboro-based immigrant rights group, the workers began protests last fall, marching onto a worksite of their former employer to deliver a letter of demands. Then they protested at a restaurant their former employer operated at The Streets at Southpoint Mall.
They handed leaflets to mall patrons denouncing the restaurant owner’s actions.
Though the protesters had few resources, they were joined by members of the Durham Workers Assembly and Durham Fight for $15 . According to Siembra NC, negotiations with the former employer began and then stalled until the protests resumed.
(A previous version of the story incorrectly stated that the Durham Worker’s’ Rights Commission, a related group, assisted the protesters.)
In late December, the employer, HomeHitters Inc., agreed to pay the workers $13,352.50 in back pay for 1,312.5 hours of work, according to the settlement document, which Siembra NC’s attorney provided to The News & Observer. The pressure campaign had worked.
A spokeswoman for Brookfield Properties Retail, the owner of the mall, said management wasn’t aware of the protests. She said the lease with the restaurant was terminated in late 2019 for reasons the company would not disclose.
Workers going unpaid is not unusual
Stories about going unpaid are common among immigrant workers in manual labor.
“It’s incredibly prevalent,” said Andrew Willis Garcés, director of Siembra NC, in an interview. “It is the number one or the number two thing that [immigrant workers] say has been a problem for them and their families or someone they know.”
What is uncommon is workers getting the money they are owed.
Nelly Ysleno, originally from El Salvador, had given up on recovering the wages, even though the money was important to her as a manual laborer and a single mother supporting three children.
It was only when she found a pamphlet a relative had received from Siembra NC that offered help to immigrants with labor issues that she thought something could be done.
In an interview, Ysleno, 32, said the workers had left HomeHitters in March 2019 after a work project on an apartment construction site in Durham was canceled for reasons outside of their control and they were ordered off the site.
According to the settlement, their employer then failed to pay them.
Demetrius Liverman, the employer, declined to comment on the settlement for this story when reached by phone. His attorney did not return calls.
The workers’ case generated more complaints
Ysleno was unsure that her group’s efforts would work.
“I didn’t have any kind of fear about protesting,” she said in Spanish. “I told the other workers that we were in the process of demanding our wages and that they should help out. The others were fearful because, lamentably, they were undocumented.”
She said being able to get some of a full week’s worth of pay and more for her coworkers was worth the time and effort.
After this case was first reported by Spanish-language news outlets, Willis Garcés said, Siembra NC organizers and their hotline were bombarded with calls from people who claimed the same thing had happened to them.
“That’s just scratching the surface of who experiences this here,” he said.
The case was the third successful effort by Siembra NC last year. The group led similar pressure campaigns with immigrant hotel workers in Mebane and with janitorial workers in Greensboro, gaining a total of roughly $55,000 for workers, Willis Garcés said.
He said turning to the North Carolina Department of Labor with cases involving immigrants is slow and “fruitless.” He said he has heard the same from colleagues in other local organizations who have worked with labor issues.
More cases closed than opened
Dolores Quesenberry, an N.C. Department of Labor spokeswoman, told The N&O in an email that an investigation of HomeHitters Inc. remains open. Six of the workers filed wage complaints last year with the department’s Wage and Hour Bureau. After the settlement, five of the workers dropped them.
Once a wage complaint is filed, the bureau can investigate employers by requesting payroll records and other documents.
The Durham workers were independent contractors, not employees, which is typical to construction workers. According to a 2014 investigation by the N&O and The Charlotte Observer, North Carolina has a record of construction workers being intentionally misclassified — leading to lower pay — and not getting help from the N.C. Department of Labor.
The department’s annual report for the 2018 fiscal year says 12,259 wage and hour investigations were opened between fiscal 2015 and fiscal 2018, while 12,953 were closed. Wage payment claims accounted for 91% of the investigations.
Quesenberry said investigations can find wages due or no wages due or can conclude as a result of bankruptcy, independent contractor status, referral to another agency, or at the request of the complainant.
Quesenberry said seven cases have been referred to the State Attorney General’s office for lawsuits against employers since late 2016.
“Although, the reality is that due to the high cost of filing fees and related court costs, it is not always economically feasible to file lawsuits on the employees’ behalf,” Quesenberry said. “In addition, employers are often found to be without sufficient property on which to levy a judgment and no wages are ever able to be collected for the employee.”
Wage theft, a term not used in the state’s Wage and Hour Act, is a particularly significant problem for immigrant workers in the construction industry who are often misclassified, said Carol Brooke, a senior workers’ rights attorney at the North Carolina Justice Center in Durham.
Wage issues will continue
“Misclassification and wage theft often go hand in hand,” Brooke said. “Employers who want to distance themselves from having an employee relationship with workers, that same employer may be one that is fly-by-night and not inclined to follow employment laws and perhaps not pay that worker for the work they performed.”
Wage theft ranges from lack of paid overtime, unexplained wage deductions or unnecessary charges for employees, Brooke said, but the Justice Center hears more commonly about workers not getting paid at all. She said numbers from the N.C. Department of Labor don’t reflect the reality because most workers don’t come forward with claims.
She said reasons this will continue to be an issue for immigrant workers include fear related to immigration status, language barriers, people not knowing the N.C. Department of Labor has Spanish speakers, and the agency’s weak record of investigating and collecting these wages for people.
A 2019 report from the National Employment Law Project found that only six states have retaliation protection laws for workers exercising their minimum wage or overtime rights. North Carolina is not one of them.
The $13,000 spread among 20 workers in Durham doesn’t seem like much, but the money meant a great deal for Ysleno.
“There were many times when I thought this is just not going to happen,” Ysleno said in a Siembra NC press release in late December. “But we remained strong and encouraged each other to keep going. And now we have all this money that we had earned through hard work but didn’t think we were ever going to see, and right before the holidays. It feels really great.”
This story was originally published January 30, 2020 at 5:30 AM.
