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What would you be willing to do for $33 a day? How about starting work at 2:50 p.m. and being your on your feet working until you clock out at 11 p.m.? Add in that your supervisor can't be bothered to give you breaks, so you have to pretend to be going to the bathroom in order to grab something to eat or get off your feet for a few minutes.
Then there's a mandatory $7 transportation fee — you're not allowed to take the bus at $3 per round trip — and all this after getting up at 7 a.m. to wait around to get the job that started that afternoon.
You might decide that's not worth $33. But if the only alternative is selling drugs or some other illegal activity, you suck it up and take your $33. Or do you?
Sixteen day laborers in Cincinnati are challenging that kind of treatment. A lawsuit in federal court accuses Labor Works in Cincinnati and Schwan's Food in Florence of violating the Fair Labor Standards Act. The laborers seek back pay, damages and attorney fees.
"I've been with Labor Works since '96, so I know how it works," says Damon Pearson, a day laborer and plaintiff. "You gotta go in early just to get your name on the list, and then you wait. If you worked the previous day, you're likely to work that day, but there is a little bit of favoritism.
"Then from 11:30 to 1:00, you're just waiting around on the driver. Driver's got an attitude. On top of that, you have to pay for transportation, whether or not you work. Shifts begin at 2:50 or 3:20. We're sitting in the (Schwan's) cafeteria until a shift starts and not getting paid."
All that waiting is an integral part of the job and ought to be compensated, according to Kelly Lundrigan, one of two attorneys who filed the lawsuit. He says the day laborers aren't free to go do something else and the employer benefits from having the workers ready to go the moment a shift begins. Because of the transportation arrangements, the Labor Works employees are "held captive" and not being paid, Lundrigan says. That's why the lawsuit claims back pay is owed.
'A lot of abuse'
If the assembly line at Schwan's breaks down, Pearson says, the workers can be left standing around with nothing to do or simply sent back to Cincinnati and don't receive any pay in either instance. Additionally, time in excess of 40 hours a week isn't paid at the legally required overtime rate, according to the lawsuit.
Another issue is mandatory fees the employees pay for transportation. The Labor Works Web site boasts "the elimination of 'no-shows.' " This is accomplished by requiring day laborers to ride the company's bus for $7 a day. The Web site neglects to include that piece of information.
"We provide transportation to and from your job site," the Web site says. "This allows us to guarantee that the number of temporary workers you ordered arrive in our company vans on time and in an organized fashion. Likewise, since the temps rely on us for transportation, they are less likely to be 'walk-offs' during the scheduled shift."
Pearson says the bus has inadequate heating, frequently breaks down and arrival/departure times are unreliable. He also questions the reason for the fee.
"That's $7 times 15 people times two buses," he says. "What are they doing with all that money?"
That's $210 per day paid to Labor Works by its temporary workers.
"The fact that they're required to use the transportation required by Labor Works is a system designed by Labor Works to benefit the employer," Lundrigan says. "It's an abusive practice."
But it's a common practice by day-labor companies, as is charging rent for such safety gear as protective goggles or clothing required by the employer, according to Curt Braymen. A board member for the Day Labor Organizing Project, Braymen and others are helping identify individuals who might want to join the lawsuit (www.volunteermatch.org/orgs/org59751.html).
"There's a lot of abuse," he says. "This isn't a unique experience — it happens in at least six or seven day labor halls every day. We're going after Labor Works because the workers came to us."
Sean Fore, CEO of Labor Works, headquartered in Louisville, Ky., disputes the allegations but declines to answer questions.
"We don't think there's any merit to the lawsuit," he says. "We're going to let our lawyers make those responses in the proper venue."
The laborers, the Day Labor Organizing Project and the attorneys say they aren't looking for special treatment; they want to be treated fairly according to existing law.
"The Fair Labor Standards Act is a very fact-specific analysis to have to engage in under that statute," Lundrigan says. "There are lots and lots of legal exceptions and qualification to the law, and it's a very fact-intensive analysis to determine when somebody has to be paid for what type of activity. In this specific case, based on these facts, we believe these employers are legally required to pay these employees for the time that they are spending — the time they're waiting to get to Schwan's, the time spent waiting in the Schwan's cafeteria. All that time, we believe they're entitled to be compensated for."
'Give us some respect'
Lundrigan calls the group of 16 plaintiffs "courageous" because of their willingness to speak out.
"The unfair illegal business practices, we think, are designed to prey upon the most vulnerable people in our community," he says. "They're people who want to work but are having a hard time making ends meet. Lawsuits can definitely be agents of change, as they have been in the past. I think this lawsuit in particular definitely has the capacity to change behavior."
Trying to get businesses to accept responsibility for practices that perpetuate unfair and illegal activity is difficult. A system of subcontracting allows large companies, such as Schwan's Foods, to ignore their culpability, Braymen says. He sees this as an increasing problem in this country.
"You go to Schwan's, they say, 'That doesn't have anything to do with us — that's Labor Works.' Why would Schwan's use as many as 50 temporary people a day?" Braymen asks. "It isn't a case of supply and demand. It's becoming a trend in this country."
Lundrigan agrees.
"There's an economic incentive to do this," he says. "Economic efficiency is great. But this kind of abusive behavior should not be tolerated."
Schwan's Plant Manager Randy Ingolia didn't respond to a request for an interview, and Bill McCormack in the corporate office was unavailable for comment.
Based on his experience, Pearson doesn't think Schwan's Foods is racist — they just look down on and abuse workers who are poor.
"I'm not perfect here," Pearson says. "But we're putting in our time and effort into working. It's hard and they treat us like crap. Give us some respect. We got people who want to work, who don't want to sell drugs or work in strip clubs. In Cincinnati we're cryin' for more jobs." ©
