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| Laborers
Local 113 members Juan Jose Cabrera (left) and Reynol Cabrera at the Kenilworth
Building job in Milwaukee Photo by Troy Freund |
Domingo Cano decided to knock off work early.
It was a Friday in September, and Cano was at the end of a very long week painting.
As he cleaned latex paint from a paint gun, he accidentally injected one of his fingers with a thinning solution. Rushed to an emergency room, Cano learned that the thinner was quickly killing tissue in his finger. His whole hand was throbbing, and the sting surged all the way up his arm and into his torso.
"The pain went into my chest, and my co-worker thought I was having a heart attack," Cano said through an interpreter. "When the doctor asked me how bad is the pain on a scale of one to 10, I said, '11,' because I thought I was going to die."
At the hospital, doctors washed the wound internally and scraped off necrotic tissue from Cano's finger. But that didn't help. One week later, doctors, fearing the damage would spread, amputated the middle finger from Cano's left hand.
Cano was joined at the hospital by his employer, James Schluter, owner of Schluter Painting Inc., Madison. At the time, Cano said, Schluter said he would cover the medical bills since he was Cano's employer. When the bill came due, however, Schluter refused to pay up, saying that Cano was an independent contractor and therefore ineligible for medical coverage.
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Juan Jose Cabrera, a Laborers Local 113 member, loads scrap iron onto pallets at the Kenilworth Building project in Milwaukee. Photos by Troy Freund |
"He was not an employee," Schluter said, adding that he went to the hospital to reassure Cano that he could have his job back after recovering. "There got to be some confusion someplace. I don't know how that happened."
According to state law, a worker must meet all of nine criteria to be considered an independent contractor. Among the nine stipulations, a worker must own his own business, supply his own materials and equipment, hold his own federal employer-identification number and incur the main expenses related to his work. Cano said none of these things apply to him. Schluter supplied the materials, equipment and a truck and told Cano where and when to show up for jobs.
Schluter disputes this, though he acknowledged that he "did help [Cano] out with some things." Schluter also said he brought an interpreter to tell Cano and other Spanish-speaking workers to obtain a federal identification number and apply for their own insurance policies.
Cano received his wages in a check that didn't include withholdings for taxes, Social Security or workers' compensation.
Still, that's not enough for Schluter to deny Cano was an employee, said Aaron Halstead, a lawyer with Madison-based Shneidman, Hawks & Ehlke SC, which has taken up Cano's case. "It's not even close," he said.
In December, Halstead filed a claim with the Wisconsin Department of Workforce Development seeking compensation for lost time, payment for $38,000 in medical bills, permanent disability, a disfigurement benefit and more. The total sum is large enough that Schluter said he will have to declare bankruptcy if he loses the case.
Schluter's insurance company denies everything about the accident, from whether it even happened to Cano's claim that Schluter was at the hospital, Halstead said.
"I feel sad, sort of like I was abused, especially not knowing what my rights are," Cano said.
Later this year, Cano, who came to Madison six years ago from the Mexican state of Guanajuato, will find out if the DWD agrees.
Cano isn't alone. In the last decade, the state's construction industry swelled with immigrant workers, almost all of them Spanish-speaking and the majority from Mexico. It mirrors a broader national trend in the last decade in which one of every two new workers was an immigrant, most of them coming from south of the border, according to the Urban Institute, a Washington, D.C., think tank.
To be sure, the numbers in Wisconsin are small compared to so-called traditional settlement states such as Texas, California and Florida. Of Wisconsin's roughly 161,625 construction workers, 3,222, or about 2 percent, are Hispanic, according to the 2000 U.S. Census, the latest available statistics.
But the industry has taken notice. Contractor associations now offer basic Spanish language courses, and they've produced pocket-sized, industry-specific, Spanish-English dictionaries to bridge the language barrier. Companies now routinely hire bilingual superintendents, and unions have brought on Spanish-speaking organizers.
Yet there remains a clear divide in the construction industry. Some contractors have taken it upon themselves to accommodate this new group of workers. Others have seen profit.
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| “Any
normal American person would say, ‘I’m not going to do asbestos work for $10 or
$12 an hour.’ If you call one of these guys, they’ll say, ‘Where and when?’” Photo by Troy Freund |
Many Hispanic construction workers are undocumented immigrants. Their sketchy worker status and shaky knowledge of English make them ripe for abuse. It's produced a shadow construction industry where the pay is low and inconsistent, the hours are long, worker's compensation doesn't exist, and workers have little power to blow the whistle.
"It's a new slavery," said Al Perez, a bilingual organizer for the Milwaukee branch of the Chicago Regional Council of Carpenters. "They're all being exploited. It's growing like weeds."
By spring of last year, the number of undocumented workers in America ballooned to 10.3 million, according to a March 2005 report from the Pew Hispanic Center.
According to the report, between 100,000 and 150,000 undocumented workers live in Wisconsin, and, if the state is like the rest of the country, most of these immigrants are Hispanic.
That places the state in the top 20 nationally, but Wisconsin is still far outpaced by California (2.4 million) and Texas (1.4 million). More interesting, however, is that Wisconsin ranks near the top in the percentage of undocumented foreign-born residents, anywhere from 40 percent to 54 percent. The high ratio suggests that Wisconsin has experienced a recent surge in undocumented workers, according to the report's author.
The number of undocumented residents also suggests that more than 2 percent of the state's construction workers are Hispanic. They're just working under the statisticians' radar.
Here's how they're doing it. Most contractors pay workers with a regular check and withhold the proper amounts for workers' compensation, medical and pension benefits, Social Security and union dues, if applicable. But with undocumented workers, contractors hire employees but pay them as independent contractors with checks that contain no withholdings. Or they create shell subcontracting companies, which in turn write similar checks.
In some cases, contractors pay their employees in cash, leaving no paper trail at all. The general idea is to pay these workers little money and then skim the savings off a contract to produce a hefty profit.
"Employers will raise the stakes with Mexican workers because they think they'll just go away," said Halstead, who routinely handles 70 workers' comp cases, more than half of which involve undocumented workers.
The pay for these workers is typically well below the applicable prevailing-wage rate and sometimes even the minimum wage, and workers often aren't paid by the hour but by the week or by the piece. Lorenzo Camacho, who's been working in the Madison carpentry business for 14 years, said he was regularly paid $60 a day, in cash, for days that would last at least 12 hours.
When
Jose Luis Hernandez, an undocumented insulation worker in Milwaukee, started working
for his employer three years ago, he earned a flat rate. His employer would give
him and a co-worker an order to hang insulation in three single-family houses.
They would work as many hours as necessary, usually 60 to 70 over the course of
a few days, and receive a check for between $300 and $500 each, Hernandez said
through an interpreter.
The problem runs deepest in the insulation, asbestos-abatement, drywalling, painting and roofing industries, sources said. Contractors hire illegal immigrants and pay them very little for monumental hours of work.
"They know these guys are vulnerable because they're not green-carded or they'll lose their jobs," said Edwardo Williams, a bilingual organizer for the Wisconsin Laborers District Council. "Any normal American person would say, 'I'm not going to do asbestos work for $10 or $12 an hour.' If you call one of these guys, they'll say, 'Where and when?'"
Work conditions are usually abysmal as well. Mike Carey, business representative for Painters union Local 802, said it's common for these workers to sleep at job sites. In 1998, the Carpenters union filed a complaint with the attorney general's office, and part of the complaint alleged that drywall workers were defecating in the project's bathtubs because there were no portable facilities. Cano said Schluter gave him a mask to wear for his job but replaced the filter monthly rather than weekly.
Hernandez said his employer gave the Mexican workers rickety ladders and stilts and no facial protection from falling insulation debris.
By undercutting equipment and labor costs, these contractors have made it difficult for law-abiding businesses to compete, said Sonja Markiewicz, administrative assistant at union-affiliated Koppes Drywall Inc., Madison. She said her com-pany's workers were "dropping like flies" two years ago because Koppes' competitors were pricing the firm out of the market.
"They
can make proposals that are 20 percent lower than a legitimate company is going
to pay," she said. "That really put a dent in our work."
She said she checked with her supplier and figured her competitors were essentially charging for materials and omitting labor costs. "They're paid virtually in rice and beans, it's so little. Besides hurting our business and the other legitimate guys, it exploits these workers. The only fair thing would be to level the playing field."
Unions have an obvious stake in making sure their union-affiliated contractors can compete in the marketplace. Unions have targeted many companies for organizing campaigns, and they are the most outspoken advocates for these workers. They help workers assemble wage complaints, workers' comp cases and pursue other avenues to retrieve overtime and back pay. Unions can also add undocumented workers to their rolls, since it's up to the contractor to verify worker status; unions simply act as referral agencies, labor officials said.
But more important, unions take seriously their role as advocates for workers, and in many cases, organizers said labor has no interest in companies that are exploiting workers.
"As a union, we're giving them a chance as a worker," said Williams, the Laborers’ union organizer. "We don't care about your [immigration] status. We care about your status as a worker."
But Carey, with the Painters union, said the same fear that prevents many undocumented workers from blowing the whistle on their employers also comes to bear with joining a union.
"It's a challenge," he said. "They're afraid to speak up or they'll lose their jobs." Also, in Mexico, unions carry bad connotations, Carey said. "If you mention unions there, you disappear, and you wind up in jail."
But it's also true that some Hispanic workers want nothing to do with unions. They're willing to accept substandard job sites as long as a paycheck comes through, Camacho said.
"They come to America for a year or two. They make money, go back to Mexico, buy a big house and open a store."
But the majority want to stay, Camacho said, and it's more important that they simply learn their rights rather than join a union.
That's part of the job for Patrick Hickey, director of the Workers' Rights Center, an adjunct of the Interfaith Coalition for Worker Justice in Madison. He handles cases for Hispanic workers who allege abuse and exploitation.
Most of Hickey's duties involve seeking back pay and overtime, usually by filing wage claims with the DWD. He said it's not difficult to assemble the required paperwork, and, more often than not, he'll win cases on behalf of the workers. But tracking down the employers for payment is another matter.
"They're fly-by-night," Hickey said. "They disappear and pop back up under a new name."
Workers' rights advocates have approached the attorney general, district attorneys and even the state Department of Revenue and found little traction. The frequent complaint is that law-enforcement officials are tied up with murders, robberies and other more significant crimes and have little time to put together what can be exhaustive investigations involving relatively small amounts of money. Dane Country District Attorney Brian Blanchard, for example, said instances of worker abuse are "not really a focus" of his department.
General contractors and developers also are often unaware of what's going on. "I don't think they're turning a blind eye," Carey said. "They just don't know." Still, he said, "You've got to be living in a cave or be in denial to not know about this."
For Williams, it reminds him of his childhood in Arizona, when his family of Mexican immigrants worked in farm fields under rotten conditions for little pay.
"I didn't believe that would exist here in the Midwest," he said.