Dayworkers Can Counter Wage Fraud

Standing outside a local hardware store looking for work as a day laborer, Martin Sotelo recalled the time he was promised a few days’ work cleaning a yard in Irvine, but he was left without pay after nine hours of work.

The contractor who Sotelo says picked him up outside a local hardware store--and promised to pay after the work was completed--never returned to the store after that first day.

According to government and human rights agencies, Sotelo is one of hundreds of day laborers in Orange County who get ripped off each year by rogue contractors--one instance of wage fraud that is on the increase.

Jose Millan, the interim state labor commissioner, said that about 435 dayworkers in the county filed claims with the Department of Industrial Relations in 1995. Millan said that represents about a 5% increase over 1994.

In response to increased complaints, several agencies are laying plans to assist day laborers. Jose Vargas, the officer of Latino affairs for the Santa Ana Police Department, said he is working with the local Mexican consul and other social service agencies to distribute pamphlets informing day laborers of their rights and where to turn for help.

The consul, Marisela Quijano, added that she is seeking out employment attorneys who can advise day laborers who come into her office with wage fraud complaints.

Millan said his agency already has acknowledged the need for better outreach to workers, and is diverting resources to that end.

“It’s a tragedy for our society to have an underclass that government cannot help,” Millan said. “If there is a rule for government, it is to provide for people at the bottom from slipping through the safety net.”

A day laborer, whose office is the hardware store sidewalk, may seem to have few options. Yet failure to pay a worker, including a day laborer, is illegal.

Workers may file claims with the state Labor Commission, which will schedule a hearing or try to negotiate a settlement between the employer and employee. The commission also can assess penalties on employers--up to $100 for each employee they fail to pay.

If an employer issues a bad check with intent to defraud a worker, the district attorney’s office may prosecute the employer, said Don Mealing, who directs the bad-check program. An employer found guilty of a misdemeanor could face up to six months in county jail and a $1,000 fine.

Employees also may take a more independent route and bring their employers to Small Claims Court.

But day laborers often let abuses slide because of the relatively small amounts of money involved and a fear of police and immigration authorities. The anti-immigrant sentiment surrounding Proposition 187, which would deny health benefits to illegal immigrants, also might be a factor.

“[The proposition] was only a threat to undocumented workers,” said Juan Garcia, publisher of the Spanish-language newspaper Union Hispana. “But it created a climate of hostility.”

Although many dayworkers are here legally and have permission to work in the form of green cards, they remain fearful when it comes to dealing with authorities. For those here illegally, there is the obvious fear of immigration officials and being deported to Mexico.

“I’m more scared of the police” than the contractors, one worker said. “I might get a ticket [for waiting for work on private property]--or Tijuana.”

But police, government and human rights officials say that a person’s immigration status is irrelevant when pursuing so-called theft of services claims.

In the case of Sotelo, he said he went to the police after the Irvine work site contractor never returned. But he said he gave up the chase after being told that he would have to pursue his lost wages through Small Claims Court.

“It’s more time lost,” said Sotelo, 32. “We could be here another day working.”

Yet some of his fellow dayworkers say they would not let contractors get away with such abuses. “I’ll hit him,” boasted Carlos Estrada, 23.

Added Mario Dominguez, 30, who said he would go to the police or another agency for help: “I would not stand around with my arms crossed.”

One worker, Marcelino Cuevas, said he was left at a work site in Fountain Valley with nothing but a broom in his hands at the end of a nine-hour day. He said he called police to inform them of the incident, but nothing ever came of it. (Fountain Valley police say they have no police report regarding the December incident, but say they would not have filed a report if Cuevas simply called to advise them of the incident.)

Among two dozen men looking for work outside a Home Depot in Santa Ana one recent weekday morning, the most common complaint involved contractors who pick up laborers saying they need someone to work two or more days.

The work often involves construction or landscaping, and the laborers agree to be paid at the end of their stint. But after the first day of work, many of the contractors don’t return to the street corner to pick up--or pay--the laborers.

Dayworkers point out that the vast majority of contractors pay as promised, with wages averaging $5 or $6 per hour, and sometimes reaching $20. The workers say their workdays average eight to 10 hours.

But every worker outside the Home Depot had a story about himself or a friend who had been ripped off.

“It’s happened to all of us here,” Ramon Ferrer said.

No government or private agency maintains exact statistics on theft of services among day laborers--in part because many are transient and difficult to track. But John Palacio, with the Mexican American Legal Defense and Educational Fund, said the number of wage theft complaints his organization receives has remained constant. Over the past five years, he said, he has been informed of hundreds.

The actual number of cases, officials say, is probably greater than statistics show because workers often fail to report incidents.

“It occurs, unfortunately, much too often,” said Nativo V. Lopez, national co-director of Hermandad Mexicana Nacional in Santa Ana, “where people do the work and can’t retrieve their wages because the contractor is high and dry and gone.”

Statewide, the number of hearings scheduled by the Labor Commission to adjudicate wage claims has steadily fallen, from 25,147 in 1989 to 17,039 in 1994. The percentage of those claims filed by dayworkers has remained constant through the years at about 10%, Millan said. The number of hearings scheduled for 1995 will show an increase when figures are released within the next two weeks, he added.

Millan attributed the rise to increased immigration and to an increased awareness among laborers of their rights.

In the late 1980s and early 1990s, dayworker centers were established in cities including Orange, Costa Mesa and Brea, primarily to keep day laborers from congregating on street corners--which businesses and residents said created a nuisance.

One side effect was to create a controlled environment for employers and employees to meet, and center officials say the number of complaints they have received regarding wage fraud has dropped.

But officials acknowledge that they do not come in contact with the many other day laborers in the county who do not use labor centers.

Most officials from government and human rights agencies agree that more outreach is needed. But funds are scarce.

Millan said he, for example, would like to hire 10 additional field officers who could fan out to work sites to contact laborers, asking them about working conditions and informing them of their rights.

Millan said that, once again, he’ll be “trotting up to Sacramento to make the request for more money.”