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LI immigrants struggle for lost wages


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Brothers not cheated, former employers say

BY JOHN MORENO GONZALES
STAFF WRITER

For the brothers from Guatemala the courthouse was a place to avoid -- filled with police, the polished marble of authority and the prospect of being detected as undocumented immigrants.

Still, Jose Romero Garcia and his younger brother ventured before a small claims judge armed with laws that were supposed to be blind to their immigration status and allow them to seek $7,600 in unpaid wages. But instead of heeding judicial precedent that protects the wage rights of anyone who labors in the United States, Judge Howard Miller determined they had no means to recover their pay.

"The plaintiff is not a U.S. citizen and has no green card or work permit. Therefore, the employment contract under which he sues is illegal and cannot be enforced," Miller wrote in a May 2003 decision that excused two Elmont contractors from proving they fully compensated the brothers.

Jose Abelardo Garcia, 23, said he and older brother Jose Romero, 25, were twice wronged, first by the contractors, then by a judge who they believe was not impartial.

"You have a right to your pay whether you're a citizen or not a citizen, and the court ignored that," he said of Miller's decision. "The problem started with our old bosses, but the judge shares guilt."

Despite recent law enforcement crackdowns against employers accused of bilking undocumented workers out of millions of dollars, some Long Island immigrants continue to be denied basic wage rights in a pivotal small claims court where the majority of their cases would be brought.

After the recent high-profile arrests of contractors, Nassau County District Attorney Dennis Dillon said the immigration status of workers is not a factor because undocumented immigrants also must be paid for work under the law.

But according to court transcripts, Miller and Judge Scott Fairgrieve of Hempstead's First District Court have met some Spanish-speaking plaintiffs with judicially moot immigration questions before hearing their claims, sometimes dismissing the petitions, or granting plaintiffs reduced amounts based on their undocumented status.

Advocates charge that when an immigrant plaintiff is awarded wages, the jurists are racially profiling Spanish speakers and sending a message to unscrupulous contractors that exploitation is sanctioned.

"Employers get the idea there are no consequences for their actions," said Nadia Marin-Molina, executive director of the Workplace Project in Hempstead. "It's systematic. And obstacle after obstacle is placed in the way of workers' rights."

Court spokesman Daniel Bagnuola said the judges did not wish to comment. But he added: "In no way in the Nassau courts are we trying to discourage people from bringing legal actions. If anyone feels that the court acted incorrectly, or inappropriately, they have the absolute right to appeal to a higher court."

With help from the Workplace Project and a lawyer who took the case for free, the brothers appealed. And in November the Appellate Term of the New York State Supreme Court reversed Miller's decision.

"The court below erred in holding that an employment contract between an undocumented worker and employer cannot be enforced," the higher court wrote. "The public policy of the State of New York and the federal government is that the interest in enforcing wages and hours laws on behalf of all workers is paramount."

In accordance with the appellate ruling, Judge Sharon M.J. Commission of the Hempstead small claims court heard the Garcias' case on Feb. 23 and ordered employer Alex Imbriano to pay $3,800 owed to the older brother. The younger brother is scheduled to have his case for the additional $3,800 heard on June 13, because small claims courts can award only $5,000 at a time. Meanwhile, the court has mailed a summons to Imbriano's partner, Michael Pasquareto, so he can also stand as a defendant in the case, though Pasquareto said he has received no court notices.

Employer disputes claims

Both men said they paid the brothers in full, and Imbriano has appealed the decision against him. "I never, ever, in my life stiffed anyone," he said.

Constantine Kokkoris, the attorney for the Garcias, said the actions of the Hempstead court means it has taken two years, his pro bono services and the advocacy of a nonprofit for the brothers to be given a fair review. Few immigrants will have such resources, or resiliency, when seeking unpaid wages, he said.

"The fact they had to wait is not going to encourage a lot of other undocumented immigrants who are getting ripped off and are afraid to come forward," he said, adding that his legal bill would have been a prohibitive $4,000.

Meanwhile, Kokkoris has challenged another Miller ruling, arguing in an appeal filed in May of last year that the judge again overlooked labor law. In that case, worker Israel Ulloa said he was hired by a tree service for $12.50 an hour, but Miller found the man deserved only minimum wage because he was undocumented. The appeal decision is pending.

Tough courtroom treatment

Even when immigrants win claims for unpaid wages, advocates say the two Hempstead small claims judges seemed to have viewed Latino plaintiffs with stereotypes of what an undocumented immigrant looks and sounds like. The judges have requested work permits, court transcripts show, sometimes from plaintiffs who debunk the jurists' perceptions and prove they are laboring legally.

Ana Euceda, 33, of Roosevelt stood before Fairgrieve in July 2003 and won an $853 judgment against a Uniondale company.


In court transcripts of the proceeding, Fairgrieve asked four times if Euceda was a documented immigrant. In one line of questioning, he said: "I'm just gonna ask her straight out; does she have any, does she have any green card or, any, anything to show that she's legally here in the United States."

Euceda, who speaks only Spanish, answered three times through an interpreter that she was in court to seek unpaid wages only. She acknowledged her undocumented status, but said the court's persistence was frightening. "It's none of their business and had nothing to do with my case," she said in an interview. In a May 2003 proceeding, Fairgrieve again questioned a Latino plaintiff about her immigration status. His first question to Maria Penado, according to transcripts was: "Okay. Ma'am, are you, are you a U.S. citizen?" Penado answered through an interpreter: "I have a work permit. I'm not gonna answer to the fact if I'm a citizen or not."

Fairgrieve then asked Penado to produce her work permit, which she did, and then asked her whether the permit was valid during the time she said she was not paid. It was valid, and Penado was granted a judgment of $2,760 from her employer for baby-sitting services.

Amy Sugimori, staff attorney with the National Employment Law Project, a Manhattan-based group that advocates for immigrant workers, said she has never encountered similar actions by judges. "What happened on Long Island was strictly out of the norm," she said.

Experts say the law grants everyone the right to recover unpaid wages because not doing so could turn the nation's estimated 10 million undocumented immigrants into a pool of inexpensive labor . It also would mean fewer jobs for U.S. citizens and documented immigrants, said Dennis Lalli, a co-chair of the labor section of the New York State Bar Association.

"The statutory scheme is not only to protect American jobs, but to keep the playing field level," said Lalli, a Manhattan attorney. "An employer who can get away with hiring an undocumented worker with perhaps lower wage rights has an unfair advantage."

The right of undocumented workers to collect wages is so solidified that state labor officials and the Suffolk district attorney created units that have recovered nearly $10 million in unpaid wages from contractors over the past three years, including a $1 million settlement on March 16. On April 28, Dillon's office arrested three contractors for allegedly bilking 20 day laborers out of $50,000. The suspects were charged with failure to pay wages, a misdemeanor punishable by up to 1 year in jail.

Cases confirm worker fears

But because undocumented immigrants are often hired under the table and rarely have supporting documents or witness testimony needed to prevail in criminal court, prosecutors cannot tackle the majority of cases, Marin-Molina said. Also making most unpaid wage cases less approachable by law enforcement is their tendency to be much like the Garcias'; disputes with a small business over a relatively small amount of money.

The small claims court in Hempstead should be a central forum in which to recover unpaid wages, Marin-Molina said, because it oversees a jurisdiction where many immigrants live and is designed to resolve modest-scale disputes. But because some of the jurists have asked questions more common of immigration authorities, Marin-Molina said immigrants have been reluctant to take their cases there. "What the court does is confirm their fears," she said. "Cases we see are the type that would end up in small claims, if the workers decided to go."

Meanwhile, the Workplace Project has collected more than 200 complaints of unpaid wages since 2003, all in the jurisdiction of the Hempstead court. Other cases go unreported because immigrants often accept partial pay to scratch out a living.

To pick up the slack, the Workplace Project contacts some employers who immigrants say have stiffed them.

Brothers wary of deal

In the Garcias' case, the nonprofit reached Pasquareto and Imbriano and asked them to pay the brothers, or face a court action. The discussion generated a possible resolution; the contractors offered the brothers $5,000, a 1990s Ford pickup and landscaping equipment.

"We always dreamed of starting a landscaping business ourselves," Jose Romero Garcia said. But wary of the employers' promises, the worn truck and the difficulty undocumented immigrants have obtaining drivers licenses and business permits, the brothers turned down the offer and stood before the court.

When Miller asked questions about their legal right to be in the United States, the brothers said they knew the law would not be equal for them.

"It could only be discrimination against Latinos," said Jose Abelardo Garcia.

Lawrence S. Goldman, chairman of the state commission on judicial conduct, said jurists can be admonished if they act in a law-enforcement role and repeatedly ignore case law. But a complaint must be filed with the commission for such discipline to be considered.


Workplace Project representatives said they will not file a complaint for now, hopeful that Kokkoris' appeals will be a remedy. The nonprofit is instead shifting gears by taking what cases it can to higher courts, and holding seminars to inform workers of their rights.

The Garcias were at a recent gathering with 10 other men who said their various employers owed them about $7,000. Some said they still worked for bosses who were failing to fully compensate them.


"It's a right that's worth fighting for," Jose Romero Garcia said of his long legal battle. "We can't let the courts ignore the law."

"It's a right that's worth fighting for," Jose Romero Garcia said of his long legal battle. "We can't let the courts ignore the law."

Need I say more?

Jose Romero Garcia said of his long legal battle. "We can't let the courts ignore the law."

It's clear..........the LAW is not for AMERICANS
"NUFF SAID!

Quote:
"The plaintiff is not a U.S. citizen and has no green card or work permit. Therefore, the employment contract under which he sues is illegal and cannot be enforced," Miller wrote in a May 2003 decision that excused two Elmont contractors from proving they fully compensated the brothers.
Good for you Judge!

Jose Abelardo Garcia, 23, said he and older brother Jose Romero, 25, were twice wronged, first by the contractors, then by a judge who they believe was not impartial.
You were both 'twice wronged' when you entered (1x1=2) into the U.S.!

Jose Romero Garcia said of his long legal battle. "We can't let the courts ignore the law."

But it is OK if YOU ignore the law. Immigration law that is.