When desperation drove Miriam Martinez Solais to sneak across the Rio Grande in 2007, she imagined life in the United States would be worth the risk.
Here, Solais thought she would find decent pay for honest work. She imagined earning enough money to feed and clothe Ruth, the 3-year-old daughter she left behind with family in Mexico.
Instead, Solais, 28, could spend the next five years or more in prison. Roxboro police say she is a thief who used a stranger’s Social Security number when seeking work as a cook at a local Italian restaurant.
Federal labor officials describe a different kind of misconduct. They say Solais is the victim.
Sign Up and Save
Get six months of free digital access to The News & Observer
In a complaint filed in federal court, labor investigators are accusing Solais’ former boss, Giovanni Scotti D’Abbusco, of retaliating against her for complaining that Vesuvio’s restaurant cheated her out of thousands of dollars of wages she earned.
Solais’ predicament brings to the forefront political and policy questions that draw emotional responses. Like millions of other natives of Mexico, Solais came to America uninvited and is here illegally. She soon found a place for herself in a service industry that leans on immigrants willing to work hard for low pay.
The courts have said minimum wage and overtime shall be paid to all employees, both citizens and immigrants. But immigrants who don’t have visas to work in the United States often toil for less in the shadows, fearful that a complaint will jeopardize their residence in the U.S.
A jury is going to have to decide who is telling the truth and who is not.
Denise Smith Cline, restaurant owner’s attorney
Scotti D’Abbusco and his attorney, Denise Smith Cline of Raleigh, say labor officials and Solais’ allegations are baseless. “A jury is going to have to decide who is telling the truth and who is not,” Cline said.
Though Solais and her former boss agree on little, this much is clear: Solais complained to state labor officials in July 2014 that Vesuvio’s had not paid her all the money she was owed.
When state labor officials informed Solais that her case should be handled by federal, not state, investigators, Solais turned to a private lawyer for help. Solais’ attorney sent Scotti D’Abbusco a letter last December asking that he settle the wages Solais said she was due.
Meanwhile, Scotti D’Abbusco hired a private investigator to examine Solais. When the investigator determined that Solais had submitted to her boss identification with someone else’s Social Security number, the investigator alerted Roxboro police. Solais was arrested on charges of identity fraud two weeks later.
“I never thought as I was trying to go through the process of recouping my wages that they would find a way to get me arrested,” Solais said through an interpreter. “I never thought they were capable of doing something like that.”
After her arrest, she was also charged with more than 20 counts of obtaining property by false pretenses. Because she wasn’t authorized to work in the U.S., Roxboro police say she obtained her paychecks illegally.
A team of lawyers, some volunteering through the Lawyers Committee for Civil Rights Under Law, is poised to fight for Solais.
Still, Solais feels defeated. She pines for Ruth and regrets the last eight years separated from her.
The six days she spent in jail after the arrest haunt her. Solais tells anyone who will listen that she is not a criminal.
Long path to Roxboro
At 19, Solais worked for $50 a week chopping meat at a butcher’s shop three hours from her village in central Mexico. When she saw her daughter on the weekend, she turned over her week’s wages to her parents to buy groceries and pay utilities. She fretted constantly about how she could afford the fees needed to send Ruth to school.
“I just wanted her to have a better life, a different life, not like me,” Solais said.
When some friends in the U.S. offered to front Solais the money needed to make passage across the Mexican border, Solais decided leaving was the only way she could care for Ruth.
Half of America’s illegal immigrant population of 11.3 million came from Mexico, the United States’ neighbor to the south. Many floated or swam across rivers and walked day and night through desert and desolate ranches. For this, they paid handsomely. Solais owed $2,500 to reimburse her friends who paid her smugglers – a debt her brother settled so she could leave Florida and join him in North Carolina.
That first year, Solais said she thought constantly about giving up and heading home. Work was harder to find than she imagined. She understood little English and spoke none.
In 2008, Solais said she heard of a job opening at Vesuvio’s, an Italian restaurant across from the courthouse in downtown Roxboro, about 50 miles northwest of Raleigh.
In this rural community of about 8,500 residents, Vesuvio’s is a vibrant anchor in Roxboro’s historic downtown. Lawyers, clerks and police flock there for calzones and cheesesteaks at lunchtime; others head there for a beer after work. (Another restaurant in Roxboro by the same name is no longer affiliated with Scotti D’Abbusco and his downtown location.)
At first, Solais said, she washed dishes and cleaned the restaurant. Soon, she said, she was elevated to food prep work, then became a cook.
Solais said she reported to work by 10 each morning six days a week and dragged herself home at 10 each night. She said she earned between $300 and $400 each week, which would have amounted to $4 to $6 an hour, less than the $7.25 minimum wage and the $11 an hour overtime pay.
Scotti D’Abbusco has said in court filings that Solais did not work for him before 2013. He says she logged an average of 20 to 23 hours a week, working half-shifts. He described a friendship with Solais that soured after he and his wife said they couldn’t help her bring her daughter to America.
“They really feel stunned by what has happened,” Cline said. “He feels very much snakebit.”
Solais says her relationship with her boss was not friendship and that his assertions concerning a dispute about helping with her daughter are not true.
Pattern of misconduct?
Federal laws require employers to pay minimum wage. For hours worked over 40 in a week, time and a half must be paid. When employees complain to officials that their boss broke these laws, the employer is prohibited from retaliating.
In a complaint filed in federal court, the U.S. Department of Labor says Scotti D’Abbusco and another employee intentionally hired immigrants not authorized to work in the U.S. A Labor Department attorney said in the complaint that prospective employees were told to provide employment documents, even if they were false.
“Defendants told employees that they hire kitchen staff who were not authorized to work because they can pay these employees less than American workers. (Scotti D’Abbusco) stated that American workers do not like to work and have to be paid more,” according to the labor complaint.
Scotti D’Abbusco denies these claims.
Labor officials want the judge to order Scotti D’Abbusco to stop those practices and reimburse Solais for the expense and hardship of her criminal prosecution.
Solais said during her time at Vesuvio’s, the kitchen staff was primarily immigrants, many of whom came here illegally. Her attorney, Gilda “Jill” Hernandez of Apex, said in court filings that she estimates 10 to 15 other workers were also cheated out of proper wages while working at the restaurant. She has asked a federal judge to allow others to join the lawsuit; Cline says Hernandez’s claims are baseless.
Solais and her former boss disagree greatly on the length of time she worked for the restaurant. Solais says she was hired in 2008, and at some point early in her employment, she supplied identification at Scotti D’Abbusco’s request to validate her right to work in the U.S.
Hernandez, Solais’ attorney, said Scotti D’Abbusco didn’t use or acknowledge her identification until 2013 when he began using a payroll program to pay part of her wages by check. Solais said she had been paid entirely in cash prior to 2013.
Scotti D’Abbusco has said in court filings that Solais’ employment began in 2013 and that the identification was supplied as part of the hiring process.
Those two pieces of identification Solais provided are at the center of her criminal prosecution. Roxboro police say the Social Security number on Solais’ identification belongs to a man in California who was unaware his identity was being used.
On the advice of her attorneys, Solais declined to discuss how she obtained the identification cards.
Scotti D’Abbusco did not verify the authenticity of Solais’ identification. Cline said he is not required to verify employees’ identification with federal immigration officials because he had in 2013 and still has fewer than 25 employees. A questionnaire submitted to the state Labor Department in August 2014, however, said the restaurant had 36 employees. Cline said that employee count is incorrect and that her client did not provide it to the state.
Cline said it wasn’t fair to blame the employer for not detecting the fraudulent identification. Cline said Scotti D’Abbusco is an Italian immigrant and small-business man whose employment practices have evolved over time.
Cline said it was Scotti D’Abbusco’s private investigator, not Scotti D’Abbusco, who reported Solais to police. That distinction could be important in the retaliation petition filed by federal labor attorneys.
Roxboro police declined to comment while the case is pending. Efforts to reach Person County District Attorney Wallace Bradsher failed.
Federal labor officials want a federal judge to cite Scotti D’Abbusco and his restaurant for seeking retaliation against Solais. They also ask that Scotti D’Abbusco be ordered to pay Solais’ costs and expenses related to her criminal case.
Labor officials have helped petition for Solais to be granted a temporary protective visa because she is a witness in the investigation. She is protected from deportation while the application is being processed.
The shame of handcuffs
By June 2014, Solais said, she was exhausted. The hours and physical demands had worn her down.
Her wages had been a growing agitation, but Solais said she feared that raising these issues would cost her her job. Instead of complaining, she decided to quit and look for work with fewer hours and better pay.
Solais said, though, that Scotti D’Abbusco refused to pay her at all for her final few days of work. He denies this.
I just felt like it was a slap in the face. I was just fed up.
Miriam Martinez Solais, worker
“I just felt like it was a slap in the face,” Solais said through an interpreter. “I was just fed up.”
In July 2014, about a month after she left Vesuvio’s, Solais called the state Department of Labor to report her wage problems. An investigator contacted Scotti D’Abbusco to inform him about Solais’ complaint and to request two years of the restaurant’s payroll records.
Soon after, friends and former co-workers began to warn Solais that Scotti D’Abbusco was looking for her and wanted her arrested, federal labor officials allege.
In October 2014, the state Department of Labor informed Solais that because Vesuvio’s did more than $500,000 in annual dollar volume that her overtime complaint needed to be investigated by federal labor officials.
The sequence and proximity of the events that followed prompted federal labor officials to determine that Scotti D’Abbusco retaliated against Solais.
On Dec. 12, Solais’ attorney sent Scotti D’Abbusco a letter asking him to settle a wage claim of $164,000, which included years of underpayments of overtime as well as interest and other damages.
About 10 days later, labor officials said, Scotti D’Abbusco warned Solais through a mutual acquaintance that “she needed to drop her demand for back wages because he did not want anything to happen to her or her daughter.”
The message relayed another warning: Police were looking to deport her because they knew she used false documents.
Scotti D’Abbusco denies making any threats.
In early January, Solais’ attorney told Scotti D’Abbusco that she intended to file a federal lawsuit to collect Solais’ wages. A week later, Roxboro police received a report that Solais used another person’s Social Security number to gain employment.
Two weeks later, Roxboro police called Solais and said they wanted to speak with her about the wage complaint she had against her former boss, court records show. Within hours, two Virginia police officers came to arrest Solais at the restaurant where she started working after leaving Vesuvio’s.
Solais said the officers told her she was a fugitive and must be returned to Roxboro to answer for her crimes.
Solais wept as she thought about the shame her mother would feel if she saw her in handcuffs.
‘Scared all the time’
Solais is embroiled in three legal battles stemming from her employment at Vesuvio’s restaurant. Each will take months to unfold.
One case, the two identity fraud charges, could cost her five years or more in prison; in addition to supplying the fraudulent identity to Vesuvio’s, police say she did the same with another restaurant, Golden Corral. Her federal lawsuit could recoup wages that Solais said she earned and could also help other Vesuvio’s employees who say they weren’t paid the correct wages. The last, the complaint brought by the federal Labor Department, could order Scotti D’Abbusco to abide by labor laws and pay for Solais’ troubles.
Solais spends her days worrying and waiting.
She moved into an apartment with a relative and is dependent on his charity. She shudders at every knock on the door, fearful that police are coming for her again.
It’s not easy living like this. I’m scared all the time.
Miriam Martinez Solais, worker
“It’s not easy living like this,” she said. “I’m scared all the time.”
A plastic photo album holds all the glimpses of Ruth she’s been able to grab in the eight years since they parted. She frets that her daughter has forgotten her and will never understand why she left.
Many days, Solais doesn’t understand it herself. She left Mexico to get a taste of the freedom that comes with decent wages. Now that gamble could cost her.
“I never should have come here,” Solais said through an interpreter. “I should have stayed in Mexico with my daughter, barely making it. But, at least not here, not under these circumstances.”