State Politics

Law finds for laborer, but no payments follow

Bernardino Pina install windows at a Fayetteville apartment complex last month. Pina has been fighting for four years for NC Contracting Inc and the company's owner to pay the wages he owes for three weeks of framing work in 2010. Pina and six other men filed a lawsuit in Wake County courts to force NC Contracting to pay; they still wait.
Bernardino Pina install windows at a Fayetteville apartment complex last month. Pina has been fighting for four years for NC Contracting Inc and the company's owner to pay the wages he owes for three weeks of framing work in 2010. Pina and six other men filed a lawsuit in Wake County courts to force NC Contracting to pay; they still wait. tlong@newsobserver.com

When Bernardino Piña tuned in to a Hispanic radio station in 2010 and heard an ad seeking construction framers, he jumped at the chance for a steady paycheck.

What he got, instead, was entanglement in a labor scam that runs afoul of a host of laws and cheats low-wage workers out of pay and security. Piña’s boss, Robert Charleton Miller of NC Contracting Inc., treated him and the other laborers on his crew as independent contractors, rather than as employees.

And after three weeks of labor, court records show, Piña and six other Hispanic workers collected a single check for just $500. Split among them, it amounted to 41 cents in pay for every hour they worked at a federally funded affordable housing project in Wilmington.

Piña and the six other laborers turned to the courts to right the wrong. Miller calls himself a victim, but a judge has ordered him to pay the seven workers.

Years after their work, they still wait for their pay.

“The saying goes around: ‘Hispanic people can’t do anything about it, so you can do anything to them,’ ” Piña, 55, said last month through a translator.

NC Contracting Inc. has robbed dozens workers of their pay on federally funded or backed jobs for years without penalty, according to court records and reports provided by federal labor officials. On Sunday, a story in the News & Observer and Charlotte Observer detailed federal investigators’ failure to stop Miller. In some instances, claims against Miller, a subcontractor, were closed after the general contractor on the project paid Miller’s workers directly, according to federal labor reports.

But Piña and the other six laborers have tried to collect the money directly from Miller, using the court system to force his hand.

Their journey illustrates the frustrating – and sometimes futile – efforts of workers who seek redress in the courts after they’ve been cheated out of their pay.

Under federal law, workers can turn directly to the courts to enforce some labor laws, such as rules on minimum wage and overtime pay. Some workers for corporate employers – such as a group of FedEx drivers who were wrongly treated as independent contractors – have been successful in court, sometimes collecting double the amount of pay they were owed originally.

But low-wage workers for small firms such as NC Contracting find themselves trudging through lengthy lawsuits that might yield nothing. Mistreated workers sometimes are stalled before they start, unable to find a lawyer willing to invest time in a lawsuit that ultimately may not prevail.

“If you are a low-wage person, it may be a lot of money to you, but for lawyers, it’s not an economically viable case,” said Eric Fink, an employment law professor at Elon University who formerly filed worker labor suits in California. “A good attorney will know what the odds are.”

An investigation by the News & Observer, Charlotte Observerand McClatchy in September, “ Contract to Cheat,” revealed widespread worker exploitation on federally funded projects across the country. The labor scheme, in which a company saves money by treating a worker who should be an employee as an independent contractor instead, is pervasive in the construction industry.

The practice, known as misclassification, often breeds other tactics, such as wage theft. McClatchy estimates that misclassification costs states and the federal government billions each year in lost tax revenue.

Piña’s case shows the difficulty of making workers whole again after they have been cheated out of their pay.

Despite court rulings requiring Miller to settle the workers’ pay, he has evaded every order. He has failed to show up in court at least five times. Despite a sheriff deputy’s hunt to find assets of Miller’s that could be seized and sold to repay the workers, Miller has avoided parting with any asset.

For years, Katharine Woomer-Deters, an employment lawyer at the N.C. Justice Center, a Raleigh nonprofit, heard wage complaints from immigrant workers hired by NC Contracting. After hearing from Piña in 2010, she decided it was time to force Miller into court.

She calls Miller’s actions theft.

“We’ve pursued this case because we believed Robert Miller was a serial wage violator worth pursuing,” said Woomer-Deters, whose work is funded through grants.

Miller insists Piña was an independent contractor and said Woomer-Deters is a “crusader” who is pursuing a “witch hunt” against him. He said he didn’t pay the wages owed because they should have been paid by a middle-man he hired to run a crew.

“I’m the victim,” said Miller, 42, of Raleigh.

‘I had no proof’

The recession delivered a forceful blow to Piña and to many of the friends and family he knew making a living in America’s construction industry. Piña came to the United States from Mexico as a young man in 1979 to find a more stable life. Over three decades, he hopscotched the country, chasing construction work in Texas and along the East Coast. But, in 2010, Piña found himself without work for the first time.

NC Contracting’s radio ad seemed like an answer in a desperate moment. Piña called the phone number. He told several friends, also down on their luck, about the chance for work.

In August 2010, Piña, who has a permanent-resident green card, helped frame a public housing development funded by the Department of Housing and Urban Development and the Wilmington Housing Authority. A crew leader, sent by Robert Miller, directed the men through the day, according to depositions provided by the workers. They were told when to arrive, when to break for lunch and when to stop working for the day.

Piña said he never talked about wages with NC Contracting representatives but was assured that he and the others would be paid each week. He never signed a contract. That sort of control and lack of financial destiny suggests that Piña should have been considered an employee, not an independent contractor as Miller has insisted he was.

A Wake County judge didn’t see any ambiguity in Piña’s status as an employee. The judge ruled in January 2013 that Piña and six others were employees, not independent contractors, and were due not only the hourly rate promised but time and a half overtime for every hour worked over 40 in a week. Three months later, a judge ordered Miller to pay the workers more than $14,000, double pay for more than 1,200 hours of labor.

Piña had no way of knowing in 2010 that Miller had built a business on layer upon layer of low-wage framers, painters and drywall workers. In depositions, Miller insists he had no employees, though he bid and secured contracts requiring the labor of dozens of carpenters. Fair labor standards say workers engaged in the purpose of the business are likely employees.

Miller said in a phone interview in September that Piña and the others worked for a middleman Miller hired to run a crew.

“I get the crews together. I organize them. I train them if need be,” Miller said. “According to the CPA and the attorney I talk to, that’s the exact way it should be done.”

Piña and the six other men involved in the lawsuit worked for three weeks with only a single check of $500 for compensation, court records show. After three weeks, Piña said he and the other men lost hope and walked away from the job.

“They made it clear that I had no proof I worked, and they were not going to pay me,” Piña said.

Piña said he felt guilty that he had connected so many friends with NC Contracting, and that they, too, got stiffed on their pay. He also felt like he had failed his children and his wife, whose work at a motel in Wilmington kept the family of eight afloat through the winter of 2010.

“It’s very hard, especially with a family, to go to work and not get paid for it,” Piña said.

Finally, an immigrant advocate connected him with the N.C. Justice Center.

‘A game of chess’

By some measure, Woomer-Deters, Piña’s attorney, has succeeded in her pursuit against NC Contracting Inc. At every turn, judges have sided with Piña and the other workers, ruling that they were employees, not contractors.

A judge ordered Miller to pay $7,027 in wages not paid, awarded another $7,027 in liquidated damages and assigned 8 percent interest. He said Woomer-Deters and the Justice Center should be paid $27,000 in legal fees for her work in the case.

But Woomer-Deters faced this reality at every turn: The court orders against Miller had little more heft than the sheet of paper on which they are written.

The judgments landed in the lap of Wake County Master Deputy Vicki Britt, whose job it is to find assets that can be seized and auctioned to settle judgments.

Pursuing Miller felt like a complicated game to Britt. Over the past 17 months, she has searched property records, deeds, motor vehicle registrations and liens. Britt tried to drive by Miller’s home daily, looking for anything – a vehicle, a camper, a boat – that had enough value to be sold to pay the workers. One day, she spotted a construction trailer.

“Two days later, it was gone,” Britt said. “It’s a game of chess.”

Earlier this year, Woomer-Deters secured an order that required Miller to come to court and answer questions about his assets. Since January, Miller failed to show up to four scheduled hearings. In August, he finally sat for a hearing, but Woomer-Deters said she believes he wasn’t honest about his finances, a point she will argue to the court in November. Miller said in an interview that he is nearly broke.

Now, after four years, Miller faces the possibility of going to jail for contempt of the court and its orders in Piña’s case. A hearing is scheduled for November. Piña knows that a jail sentence could mean even less of a chance that he will collect the $900 he is owed for 143.5 unpaid hours of work, including 28.5 overtime hours.

Piña now works for another contractor, one he says pays him what he’s due when he is due it. Over the past few years, he’s warned friends to steer clear of NC Contracting and Robert Miller.

He wants Miller to pay, one way or another, for depriving him and many other Hispanic laborers of their menial wages.

“I don’t want him to do this to other people,” Piña said.

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