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February 11, 2012

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DAILY MEMO: LABOR:

Suit raises illegal immigrant rights issue

Attorney says cleaning company shortchanged hundreds of workers

By Michael Mishak

Monday, Aug. 31, 2009 | 2 a.m.

Callister and Bohlke Interview

Callister and Bohlke Interview

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A class action lawsuit has been filed against a local janitorial company used by many high-end casino restaurants. In Business talks with attorneys Matthew Callister and Brooke Bohlke who filed the lawsuit.

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A workplace lawsuit filed by a group of immigrant laborers against a cleaning contractor popular with posh Strip restaurants is the latest controversy over how third-party operators conduct business in the strictly-regulated atmosphere of casinos.

The workers allege that Bravo Pro Maintenance made them work 13 hours a day, seven days a week, cleaning hip spots such as CatHouse at the Luxor and Trader Vic’s at Planet Hollywood — without breaks and without overtime. They say they were promised $1,300 every two weeks but were paid far less, an average of $4.40 per hour.

The workers’ attorney, Matthew Callister, says the company held its mostly-Mexican workforce in a form of “indentured servitude,” squeezing more labor out of frustrated workers by promising to make them whole one day. Many tired of waiting and quit. Others, undocumented and desperate for work, remain silent.

Attempts to reach Bravo Pro and its executives were unsuccessful. According to records filed with the secretary of state’s office, the company’s corporate officers resigned Aug. 7, about two weeks before Callister filed the class action lawsuit on behalf of what he says are hundreds of wronged workers.

“These workers are the poorest of the poor, and they were cheated,” Callister said.

Although stories of worker abuse are legion, the Bravo Pro case highlights the potent intersection of immigration and labor — an area of law that, despite much debate, remains unsettled.

Are illegal immigrants entitled to back pay?

Experts in labor and employment law say the answer, for the most part, is yes. A worker is a worker under the Fair Labor Standards Act, the federal law governing wage-and-hour abuses, and the aggrieved have a right to sue.

“If you didn’t have that protection, the government would open the door to crazy exploitation” of undocumented workers, said Ruth Milkman, a UCLA labor expert who has studied immigrants and union organizing. “There’s supposed to be a firewall between immigration and labor law.”

Key phrase: Supposed to be.

In 2002, the Supreme Court chipped a hole in the wall.

In a 5-4 decision, the court ruled in favor of Hoffman Plastic Compounds, which had contested the right of an undocumented worker to collect back pay after he was illegally fired for participating in an organizing drive. The defendant in the case was the National Labor Relations Board, which had supported the worker and, citing precedent, ordered the company to pay.

Essentially, the court ruled that immigration law superseded the National Labor Relations Act — the law that, among other things, protects union activity. Then-Chief Justice William Rehnquist, writing the majority opinion, said awarding back pay to undocumented workers would “encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.”

William Gould, professor emeritus at Stanford Law School and former chairman of the federal labor board, said the Supreme Court decision rendered meaningless the precedent that workers, regardless of immigration status, are employees with legal rights.

But the narrow Supreme Court ruling was made in the context of a labor board issue. The Bravo Pro case, however, doesn’t hinge on a labor board connection but, rather, the Fair Labor Standards Act.

And Mitchell Rubinstein, professor of labor and employment law at St. John’s University, said the lower courts have held — and the 9th Circuit Court of Appeals has strongly suggested — that all workers have a right to sue employers for discrimination — and that the Fair Labor Standards Act applies to illegal immigrants.

Although that bodes well for the Bravo Pro workers, the issue is still very much alive.

“The door is not shut until the Supreme Court shuts it,” Gould said. “But most courts have balked at the idea (of denying immigrants legal standing) because it would create slavery.”

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