tv [untitled] May 12, 2011 7:30pm-8:00pm PDT
questions were raised. i will go over two of these questions that go to the heart of the concerns today. aside from taking on multiple claimants, why do the minimum wage hearings take so long? we found this question difficult to determine due to a record keeping not being as comprehensive or consistent as we would have hoped. we found that more specifically, olse does not have a way to track reasons for delay. we did find that some delays in scheduling hearings were due to the failure of certain employers failing to comply with the investigations. the hearing officer requires some hearing steps. we looked at the amount of time
spent in the process. 86% of the time, the time was spent on the investigations. 14% was spent on hearing preparation. supervisor farrell: in terms of your analysis of record-keeping, i am assuming that is a staffing level issue. >> correct. i also believe that there is some minor tweak that could be made within the database system to help with that process. >> from my perspective, if you have barely staff to keep up with the investigations, i can see why you would choose on hat -- choose handling the cases rather than reporting. it is a question of making sure that there are resources given to make that happen.
>> the average of those other four cases it is less than a year. it is 363 days. >> the second question i just wanted to share. what are the costs of bringing a case to a hearing? we found that the city attorney and the comptroller's office and staff time and overhead, the total city cost for these hearings, for all five hearing since 2003 has cost 300 -- $330,000. the city had only charged $215,000 or so of that. that is partially due to the fact that the hearing officer has some power over what is
charged to the employers during the hearing. that is not completely up to olse. that concludes my presentation. >> a real quick -- a real quick one. did you go back to where you are talking about the burden of proof? you are talking about that on the state level deeper and of proof is largely -- is on the workers. some benefits of the burden of proof is on the employer. hearing a lot from worker's organizations, it is an unfair playing field with labor law in the u.s. the burden is too much on the
workers to prove that they were violated and wage theft had occurred. you are looking to shift the burden more towards the employer and that is when the city is changing the administration towed by shifting to the employer by allowing the judgment based on the letters of determinations. are there other places where the burden can be shifted more towards the employer? for instance, when they claim they do not have time records. you could allow staff more time and resources to move forward with quicker justice for workers. >> one of the tools that they used to encourage employer cooperation are of those citations. there are three of them. one of our recommendations was to add an additional citation.
i think that by adding that or considering increasing the citation fine could help encourage those employers to cooperate in the process and shift more of the financial risk to those employers. supervisor farrell: a quick question. i thank you for your reports as well and all of your analysis. there is a lot of comparisons with the stat. my understanding is that the dlse has a limited functionality compared to our olse. our agency is tasked with a lot more in terms of doing investigations. there is a lot more comparative analysis. i am trying to get an apples to
apples comparison. it is actually not the same thing and far from it. >> at the division of labor standards enforcement, there is a wage unit, which does a lot of the same kind of work or processes individual claims. group claims are handled by a separate unit that takes a more active role. they do handle things differently and they are structured differently. >> if i make, i do not know if supervisor farrell had anything else. i understand the issue of limited resources. that is a big part of the problem. one of the things i am trying to understand is why only five cases went to hearing over a seven-year period. i understand that most cases
settle. i think it was 97%. i do have a concern of how that could be perceived by workers who find themselves in this situation. this is a smaller number of cases. in the number of cases where there is able -- recalcitrant employer who is unwilling to cooperate, where the case needs to be taken to a hearing, where you only have five hearings, that is the problem as i see it. even though we are not comparing apples to apples, you are still talking about five and then hundreds. do you get a sense of why only five cases? why are we there.
>> i think that goes a little bit back to the different types of waves -- ways the agencies do the investigations. they are able to go in and audit payroll records. maybe they could back the employers more into a corner. using the citations as encouragement as a stick to encourage employers to settle earlier rather than later, because citations to increase overtime. in some cases, there is an avoidance of trying to go through the hearing process. it is going to take a lot more resources and a lot more time. >> reading this report, that is what struck out for me and stood out. if going to a hearing is so
labor intensive and you have very limited resources, i see why you would not go to a hearing that often. there is so much volume that you have to deal with. to the extent, i think it is true that we have an objective that those recalcitrant employers are held accountable, which is why the process is in place. to have that accountability, we need to give olse the ability to have the bodies and resources to have time to work on these cases. that is what stood out for me. why do we not hear from marcy who is the director of the women's rights clinic at the
golden gate university of law. thank you for being here and thank you for your patience. >> what i would like to do is to speak about a couple of cases and to also speak briefly about the district attorney's office. i have been working in one form or another on these wage issues. i want to speak about a case where i would commend olse for they have operated and some concerns. i am a lawyer on the case that was referenced to. i have tremendous respect for the staff. they are all profoundly committed to iissues of wage theft. some of that muni overtime
money would be much appreciated. >> can you speak about the individual publicly? >> sure. >> this was a case in which olse investigated a minimum wage violations. they vigorously investigated and it resulted in a relatively prompt payment of over $22,000. my client was then fired and i handled her retaliatory firing. that was then reported to ice. immigration and customs enforcement resulted in the detention of her husband on a completely fabricated charges that he was a child molester and a rapist. as a government agency interfaced with ice and work to
track down the source of the report and traced the letter from ice back to the employer. the agency went above and beyond what they needed to do to give some teeth to their anti- retaliation provisions. i came back in 2005 with the case that took such a long time. this was the case of an in-home care giver that works 24/7 and earned $100 per day. that is about $4 per hour. i brought the claim to olse. i was particularly concerned because in this case, st. mary's
hospital pay the agency because the patient had been injured in the hospital. >> was at $100 a week? >> per day. she worked 24 hours a day. they publicly advertised for 24 -- -- 24 hours services for $150 per day. they would hang leaflets all over the city like a chinese take-out leaflets. i brought her for those reasons. it took 4.5 years to get the case to a hearing. the city attorney did an excellent job in the hearing when it eventually went to hearing with over $150,000 awarded to the city and the client. it is getting onto a year later and there is nothing selected and no enforcement action taken. they are in the review process.
whatever the reason for this, this is a broken system. this is justice denied. justice delayed is justice denied. my client has not seen a penny of the money. the hearing officer cut the penalties because it took so long to investigate it. the state refused to reopen a parallel plan because it took so long that they purged the file and they do not have it anymore. we need more resources if this kind of delay is taking place. wherever those resources need to come from, a minimum wage ordinance that does not provide the staff resources to get things to hearing promptly with recalcitrant employers is not a proper ordinance. i do not think there could be a better example of why more resources need to go to this agency.
that is both good and troubling experience says, not personally with the people at the agency. i do think that when something lasts so long, there is a bit of a head in the sand approach to dealing with it. more staffing is obviously an issue. the city attorney needs to step in more quickly and litigate more vigorously when things take a long time. something to have a conversation about is whether there should be a change in the process so that people can bring in private lawyers. if be city attorney does not have the resources to create a dedicated unit and devote more resources, that is something that should be discussed. >> i wanted to answer exactly that question. i agree with you that olse needs
to consider additional resources. other folks can talk about what the city attorney's office has done. >> i do not even know if is a private attorney general action. they do not provide lawyers. the state can do it. i think it is excellent that the city attorney is skilled in this. we might want to have an option that if be worker chooses to instead have a private attorney represent him or her, that is an option. >> is that something that we could do locally? >> i would think so. i am not suggesting this. it might be worth discussing how that would fit into the process. >> in the next session --
section will talk about what other agencies are doing in the city and county. hopefully, that can give you a sense of what else has happened. >> i did notice that the city attorney's were not one of the organizations brought here. it seems to me that indeed olse and others government attorneys and the private and nonprofit bar to assist with this. >> we represented hundreds of government workers at the arm factories that in 2001 had worked for months and months with no pay. the company shut down and they declared bankruptcy. upwards of $1 million in wages.
we lost the case when they said that there is no individual liability on behalf of the employer. this agency is critical because it allows liability of individuals. corporate officers. you cannot do that in the state. it has been foreclosed. the other critical issue is that the district attorney should be prosecuting wage staffed. -- theft. in the early 2000's, we went to the division labor standards enforcement, the chinese standards, and the labor council and met with him to push him to do something about the wage theft. to put it politely, they blew us off. they had no interest in doing this.
ultimately, there was a federal prosecution. in 2007, the owners was -- were convicted. it were not convicted on wage theft. they were convicted on bankruptcy fraud and hiding of assets. it took four months for an attorney to get a conviction. it was a really ugly regis lack of effort by the district attorney when they large part of northern california where hundreds of workers experienced wage theft. every place you look in the labor code, there is a misdemeanor. we gave them the materials and the legal theory that they needed to do to win the case.
in terms of city action, attention to wage that is really critical. >> i just want to comment that i remember that specific incident. i have left the d.a.'s office at the time. i had talked to her and fellow co-council. i know that was a disappointing decision at the times. i had a similar experience when i was co-counseling a case regarding a factory that had not paid workers what they were due. it took years to litigate that case. without the resources of nonprofit foundations or government attorneys, these workers are often left out in
the cold. these are often good examples for us to think about as policy makers of what we can do as a city family to make sure that these cases are properly resources. we need to make sure that justice is done. >> the next session of the presentation focuses on what other city departments are doing to address the issue of wage theft. we did invite the city attorney's office to be here today. i spoke to the city attorney. my understanding is that he is out of town and could not be here today. i agree that a dedicated unit on this issue makes sense. my understanding from the city attorney is that he has a draft -- and directed his staff to pay
close attention to what happens here so he can direct his staff. let's hear from the san francisco department of public health. >> good afternoon, supervisors. thank you for inviting us here. i have a presentation. i am handing one copy to a clerk. i need my copy. i am going to need this one for now. i am going to do two things. you have presented a compelling case to why she -- we should
care about this issue. i will talk about why the health department cares about this issue. why this is beyond individual workers. what the health department is doing to support the work, could any of this support the expanded or leverage? this could help discourage a wage theft. why do we care? it was very important to note that the history of labor law, whether it is employment or wages, sick days or health insurance, this is all to improve the health of workers. it is hard for a public health agency to stand idly by and when these laws are not being enforced.
out some of the consequences of not having wages paid. we would like to emphasize that these consequences are not just to the individual workers and their families. these consequences are to society at large. if a worker is the teeth because they are not being paid wages, they are creating a safety risk. if their not being paid sick days, there is the risk of infectious diseases in the workplace. the businesses that tend to disobey labor laws, tend to dissipate -- and disobey other health and safety laws. i do not need to reemphasize that this is a pervasive national problem. i will move to the types of roles and strategy is that they
will play. first i will detail working conditions and their effect on health. there is a lot of information -- information needed to describe the picture. this is needed to motivate the actions. a lot of the investigations we have done with community partners. a number of the reports were instrumental in the passage of labor laws including be a living wage laws, minimum-wage law and the paid sick days law. i have attached some of these reports for you. the second role we play is the education of workers and employers and residents. we try to directly tell the
employers of why these are important public health and safety laws. they are often not aware of the law. we can be the first point of contact and educate them about the law. we can create the culture and the businesses. these are things that the health department is going to look at. the inspectors are out there in the field looking at businesses. it might be a very small part of it. it will help move this forward. the third role in monitoring compliance, not everything that we are looking for can be seen visually in a field inspection. sometimes an indication of labor law can be seen not posting the employee notification requirements. we can see how many workers are working at one time.
we are trying to train our inspectors and staff on we can see and making referrals of symptoms. quite exciting is working with olse in a coordinated way. some of the research we have done over the years, which have done a health impact assessment of the living wage ordinance and the sick pay law. we have had a project looking at the health and safety of day laborers. recently, with the chinatown workers projects. recently, we have done an assessment of labor law and domestic workers. we have an explicit regulatory authority under california law and local law for the agency.
the minimum wage ordinance and safe -- in itself says that olse may request revoke station or suspension from another organization until the wage violations have been remedied. the health and safety code at the california level and our own health and safety code says that we can revote or suspend a permit for a business operator whenever they violate any law. that is a very, very broad authority. as part of the education, we have been conducting food operator training. every food operator is required to send this safety training. we have integrated liberal lot training. -- labor law