from the Macalester Public Knowledge Base

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[edit] Clients are frustrated that they are not attended when they come in

Jesse says that when we tell clients to "come back next time" we should let them know when our work hours are so that they come back when we are here and not other volunteers. --Yonghokim 15:30, 9 Mar 2005 (CST)

[edit] notes on CDL training with law students from the Interfaith Worker's Justice Center

present: Ricardo, Tatiana, Teresa, Jesse, Olivia, Oneill, Adam Warner, Darren, Yongho, Madeline, and the trainers.

trainers: Jeff, Tova, Kate

Jeff on unpaid wages

statute 181. if an employee is not paid www.revisor.leg.state.mn.us/stats/181/14.html

Statues 181.14 this happens if employee resigns or quits when an employee demands them (trigger), and employer doesn't pay, then if not paid within 24 hours then the employer incurs in penalty. one day of pay for each day not paid. (up to 15 days, first day included after demand)

section on the settlement of disputes (amount of payment) we would want to assert the penalty disputed days are also included. when negotiating, can use these penalties as a negotiates

181.13 if fired. immediately applies. www.revisor.leg.state.mn.us/stats/181/13.html

181.79 withholding of pay. www.revisor.leg.state.mn.us/stats/181/79.html if employer says "I didn't pay you for X reason (damaging, etc)", they cannot withhold that from paying. after the damage occurs, employee needs to do a voluntary agreement in writing. otherwise cannot be withheld. if employer withholds without such agreement, the penalty is twice the amount withheld.

exceptions to 79: if employee takes out a loan from the employer and agrees to pay, then withholding is allowed. if there's a union, or a commissioned sales.

case study: employee makes $700 every two weeks last two weeks was not paid. "he left without notice, which made me lose $450 of meat which spoiled" illegally withheld $450 from payment => $900 owed to employee $250 not paid, without excuses $69.33/day x 15 days = $1,283 client settled out of court for a lesser amount

subcontractors employer says "I don't have to pay him" which technically is true (very narrowly) you have to pay your "employees" when "subcontractors" "subcontractors" are really employees (most of the time)

20 factor test to tell if they are subcontractors (used at courts) the 20 factors will be in the binder subcontractor: your toilet brakes, you call someone, and he fixes it. he's not your employee. he has his own schedule, he decides how to do his job, he works for whoever he wants, he may have his own business card, own office, doesn't have to perform all the work on the employer's premises. he has a hope of profit or a risk of loss. (self employee?) INDEPENDENT! people are subcontractors

employee: doesn't make his own decision, is told when how where to do it, is provided the tools and when to show up and when to go home, is given instructions, is required updates, reports, is paid by the hour/month/week instead of commission

sit with your client and go over the points. if there are 15 points towards employee, it is an employee.

case: an employer made their employees make business cards with "made up" companies, and buy tools, and pay the company back discrimination, OSHA, family medical leave, minimum wage, etc apply only to employees (not subcontractors)

doesn't matter what the employer "calls" the employee. it doesn't matter either what the employee "thinks"about his own status. if they turn out to be an employee, then employment labor laws attach, and they have rights

if they are subcontractors, then there's contract law. if the employer promises pay, then they should be paid. mechanic lien. MN statute 514 www.revisor.leg.state.mn.us/stats/514/ applies to those working on construction work, landscaping, etc (not to hotels, store, etc) you can file a "mechanic lien" purpose of the law is that a painting company, roofing company, etc if they don't get paid in the construction job, they can get paid by the owner. it's aimed at big companies, but "subcontractors" can use this too. if you have "improved" the place, then you can claim X number of days of labor the worker has contributed $200 worth of labor, so they can claim $200 worth of property 514 says the employer needs to pay the person who filed the mechanic lien before paying any others. need to write a letter to the employer in a very specific wording. (the wording is included in the statute). contact Kate if you want your client to file a mechanic lien. needs to be filed within 120 days of the last day of work. file it with the county clerk, without a lawyer.

employer reactions: you file it against the owner, but the employer usually gets in trouble employer usually just pays off in order to get their construction ready if employer disputes it, then you go to court (never happens, not worth it)

how it works: file it with a clerk, send it by certified mail. I demand payment, I place a lean on your property. the lean is done on the owner, not on the contractor.

teresa: what to do when employers don't know who the owner is. A: need to investigate who the owner is. hennepin county website: (property search) type up the address -> get the owner www.co.hennepin.mn.us/vgn/portal/internet/hcchannelmaster/0,2324,1273_83289,00.html there could be multiple subcontractos, find as many subcontractors as you can in the hierarchy. the owner will have no idea who that is, and pressure the contractor.

tova on title VII (discrimination) race, color, creed, religion, national origin, gender, sexual orientation, marital status (in MN) MN statute under the MN dept of HR if they have a FEPA (Fair employment practice agency), then you need to file with FEPA first (as opposed to the EEOC) priority: use the interactive website. if the employer is in MN, then file with the MN Dept of HR, otherwise iwth EEOC MN HR dept will cross-file with the EEOC if the case applies to both. once you file with MN HR, no need to re-file with EEOC 180 days from the discriminatory incident to file 1 year to file, or 30 days to get a determination MN dept of HR will take up to 1 year to make a determination unequal pay for gender can file at the same time EEOC + MNHR (different damages from VII) -Equal Pay Act: if don't get paid the smae for the same job, then you can file a Title VII case under the MN HR and the Equal Pay Act with EEOC (different kind of complaint, although also federal) sometimes better to file with the state agency first Title VII from the Civil Rights Act (1964) - can be also in housing, public services, etc upon EEOC filing, then interpreters are provided the web can help you go through the entire process. info provided is confidential the filing is confidential up to the point where the investigation is complete, then the determination is sent to the employer. it's illegal for the employer to take retaliation www.humanrights.state.mn.us

emily: what about unclear cases (preferential treatment) it's included, equal benefits. if there's a racial group being told to do a specific work. the important thing is documentation, (written stuff), dates, times, places, witnesses

teresa: national origin. ecuadorians provided worse than mexicans kate: make sure the client wants to file suit before taking action always follow what they may want to do downs: 1) retaliation, 2) "wasting" time

some cases work without witnesses as well.

document abuse NILC [kate handed out the stuff on social security match, and another on when employer says "everyone has to show their documents" again employer cannot ask just immigrants/latinos/people of color to show their documentation (discrimination) employer cannot ask for more documents than the minimum required. after that it's blurry. there is nothing that says the employer "can't ask" for documents. if it's not discriminatory it works. if they have a temporary work permission, then they NEED to look for a new work permission document at the end of the permitted period.

case: hotel change management after the change management, it's considered "continuing employees" and they don't "have" to show the documents, but if the employer just wants to see them, you can't stop them.

social secrutiy no match letters employer cannot take adverse actions when the "social security no match" letter arrives, it could be any bureaucratic mistake (names misspelled, etc). look at the handout for strategic on what to do.

OSHA, FMLA, injuries

judgement/opinion is practice of law.

okay: to cite law not okay: to interpret it, to advice employer/client on the action tehy should take. when writing letter, say "there is X law, then this employee requests that you pay them Y amount"