Thread: Immigrant workers sue for overtime pay

http://www.vagazette.com/news/va-news3_ ... ll=va-news

Immigrant workers sue for overtime pay

By Amanda Kerr
The Virginia Gazette

Published August 20, 2005

WILLIAMSBURG -- More than 40 workers from Mongolia, Slovakia, Russia and the Ukraine are suing Fairfield Resorts Inc. and five other companies claiming that subcontracted employees to the resorts were not paid for up to three years of overtime wages.

A lawsuit filed Aug. 5 in federal court in Norfolk seeks an unspecified amount of compensation for violations of the Fair Labor Standards Act, unjust enrichment by some employers, and intentional infliction of emotional distress.

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On average the plaintiffs worked 61 hours a week, with 21 of those hours requiring overtime rates. One employee worked as many as 85 hours a week. The workers sought legal help earlier in the summer, claiming they received no pay for parts of April and May.

“This is not really an ‘immigrant' case,� said Avery Waterman, a Williamsburg attorney who is representing the workers. “It is a basic federal wage and hour employment case, which happens to involve immigrants.�

The case points up the downside of a relationship between thousands of foreign workers who flock to the United States each year, some immigrants relocating and others on work visas, and companies that need inexpensive labor, an increasingly hard-to-find sector of the workforce, particularly in service-driven economies.

What the workers earn here in one summer is sometimes equal to a year's wages in their native lands. But the cultural and language barriers the workers face can make them vulnerable to exploitation.

Some workers are paid in cash to avoid paying taxes or providing benefits. There have also been reports of a local person charging a fee to title cars for illegal aliens, then taking possession of the vehicles if the owners get into legal trouble.

In Fairfield's case, the crux of the issue is not legal status, but labor.

Waterman said that according to the Fair Labor Standards Act, it is irrelevant if the workers were here as illegal aliens. They were still entitled to overtime wages for the extra hours worked.

“Federal courts and the Department of Labor generally disregard alien status, regardless of whether the individual is documented or undocumented, in determining whether a person is an employee,� the act states.

In addition to the unpaid wages, the suit claims the workers had to pay up to $300 to companies to get permission to work for Fairfield Resorts.

The case gets complicated in determining who is responsible for paying the workers' wages.

The resort claims the workers are contractors.

“Fairfield has no record of them ever being employees of Fairfield Resorts,� said spokeswoman Cathy Hernandez.

Waterman disagrees. He provided the Gazette with a photo of a polo shirt with a Fairfield logo. Attached to it were a photo badge and a name tag of one of the plaintiffs, both bearing the same Fairfield logo.

Several companies could be responsible for the unpaid overtime. They include HK Services and Petra Chemical & Consulting, both owned by Robert Nunnery of Reades Way, in the Jamestown Hundred subdivision of James City County. Reached by phone on Thursday, Nunnery declined to comment.

Other companies include Carolina Janitorial Inc. in Wake Forest, N.C., Ambassador Hospitality Solutions Inc. of St. Charles, Mo., and Proline Management Corp., also in St. Charles.

“All defendants are being sued as joint employers of the immigrants,� Waterman said. “Fairfield Resorts and Nunnery and his companies are so named because of their actual supervision, direction and control [of the workers].

“Even if one buys into the ‘subcontractor' defense that Fairfield is trying to float, then Nunnery, HK Services and Carolina Janitorial still undeniably are liable as immediate employers,� he continued. “Additionally, Ambassador Hospitality and Proline Management are alleged co-conspirators in the scheme to avoid the FLSA wage and hour protections of the workers.�

All employees listed in the suit were paid with checks, some of which were from HK Services and Carolina Janitorial Inc., Waterman said.

Since the lawsuit was filed, some of the plaintiffs who still work for Fairfield Resorts and some of the other companies have told Waterman they have been targeted for retaliation.

“They are trying to terrorize these plaintiffs into submission by questioning the status of their documentation, which is totally irrelevant to the companies' liability to pay wages,� he said.

A lawsuit filed Aug. 5 in federal court in Norfolk seeks an unspecified amount of compensation for violations of the Fair Labor Standards Act, unjust enrichment by some employers, and intentional infliction of emotional distress.

these "IMMIGRANTS" are NOT CITIZENS entitled to the privilege and right to sue in the courts of the United States . . . "IMMIGRANTS" are under the "law of nations" and not protected under the "laws of the United States" . . .

Article III of the Constitution FOR THE United States by "we the people" provides

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;-- to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;-- between a state and citizens of another state;-- between citizens of different states;-- between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.[presumably, a foreign state was a state not in the union]

28 U.S.C. Sec. 1350, the Alien Tort Statute, explicitly confers to aliens the privilege of suing for an actionable "tort only in violation of the law of nations or a treaty of the United States" --- the Federal Employees and the Fair Labor Standards Act (FLSA) arises under the laws of the United States" NOT the "laws of nations"

In 1799, James Iredell, an Associate Justice for the Supreme Court, said in a charge to the grand jury that "

[quote:26b8i4lp]It is believed that it never was suggested in any other country, that aliens had a right to go into a foreign country, and stay at their will and pleasure without any leave from the government. The law of nations undoubtedly is, that when an alien goes into a foreign country, he goes under either an express or implied safe conduct . . . Besides, any alien coming to this country must, or ought to know, that this being an independent nation, it has all the rights concerning the removal of aliens which belong by the law of nations to any other; that while he remains in the country in the character of an alien, he can claim no other privilege than such as an alien is entitled to; and consequently, whatever risk he may incur in that capacity, is incurred voluntarily, with the hope that in due time, by his unexceptionable conduct, he may become a citizen of the United States"

[/quote:26b8i4lp]

perhaps ALIPAC can file an Amicus Curiae requesting the court to dismiss this case due to lack of jurisdiction

Definition: Latin term meaning "friend of the court". The name for a brief filed with the court by someone who is not a party to the case.

"... a phrase that literally means "friend of the court" -- someone who is not a party to the litigation, but who believes that the court's decision may affect its interest." William H. Rehnquist, The Supreme Court, page 89.

dismissing the complaint of the "plaintiffs" should not relieve the employer of its non-compliance with federal law --- IF these "immigrants" are illegals, the employer should be punished according to the law