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NC Department of Commerce found to violate Civil Rights Act

unemployment 

A multi-year investigation launched after a complaint was filed by Legal Aid of North Carolina, the North Carolina Justice Center, and Legal Services of the Southern Piedmont found the North Carolina Department of Commerce failed to comply with its obligations to provide services to persons with limited English proficiency (LEP). And yesterday, the state entered an agreement with the US Department of Labor to finally begin addressing this long-standing problem.

The original complaint alleged that the Department’s Division of Employment Security (DES) and Division of Workforce Solutions (DWS) violated Title VI of the Civil Rights Act of 1964 by not offering language assistance to persons filing claims for unemployment insurance or seeking job placement or training.  In addition, the complaint asserted that the Department of Commerce did not provide written translations of vital documents and failed to make telephone and online services accessible to LEP persons.

For the 430,000 North Carolinians with limited English proficiency at the time the complaint was filed in 2013, the Department’s failure to provide adequate language access caused significant difficulties for them accessing services and benefits.  The complaint included affidavits from affected individuals who had to wait hours in order to receive language assistance.  Some were unable to report their work search because the telephone and online services to do so are only in English.  None was offered any job search or job training services. 

The complaint was filed after years of attempts by the complainant organizations to reach an informal resolution with the Department, and was updated in 2015 with examples of continuing problems.  The ongoing problems included: failure to identify appellants as LEP individuals needing interpretation for hearings, resulting in the need to reschedule the hearing; and sending notices of hearings and hearing decisions in English only.  There were also continuing problems with weekly job search reports since the only avenues for making such reports were in English.

Under the settlement agreement reached between the U.S. Department of Labor’s Civil Rights Center and the Department of Commerce, DES and DWS must

·         Assess the language needs of the LEP populations they serve and track and report encounters with LEP individuals;

·         Develop and implement meaningful language access plans;

·         Correct problems with translations of written materials and online services

·         Identify and correct deficiencies with the provision of interpreter services

·         Train all staff on their obligations to provide language access to LEP individuals

·         Publicize the availability of language assistance and review claims by LEP individuals whose services were denied or delayed

Whether the agreement results in meaningful access for LEP individuals to all of the services to which they are entitled will depend upon the commitment of the Department of Commerce to timely and effective implementation.

Commentary

North Carolina takes step forward in addressing worker misclassification

Workers in North Carolina received some welcome news last week – the signing of a Memorandum of Understanding between the NC Industrial Commission and the U.S. Department of Labor that should make it easier for both agencies to investigate cases of employee misclassification. The term misclassification refers to workers whose employers have incorrectly treated them as independent contractors rather than employees.

Misclassified workers miss out on many of the benefits of employees, including worker’s compensation, unemployment insurance, and overtime pay. But the damage goes beyond the harm to individual workers—the state loses tax dollars because employers are not paying their share of payroll taxes, a problem that is well documented.

Surprisingly, employee misclassification is not illegal in North Carolina. While there have been efforts to address this, the General Assembly has not passed legislation that would impose penalties on employers who misclassify workers.

The good news, however, is that workers who are incorrectly treated as independent contractors now have the option to make a complaint with the Employee Classification Section of the NC Industrial Commission. The Section coordinates with other state agencies so they may undertake their own investigations into whether the employer owes unemployment taxes, should be paying overtime to its workers, has not been properly paying payroll taxes, or needs to purchase workers’ compensation insurance.

The new MOU with the U.S. Department of Labor will also ensure that evidence of misclassification is shared between the state and federal governments. It’s a good step toward the broader reform that is needed to protect workers and provide revenue to the state.

Commentary

Provision added to regulatory reform bill would undermine farmworker unions

Farmworkers

As has been common with bills drafted by this General Assembly, the title of HB593 does not adequately describe its contents.  The “Act to Amend Certain Environmental, Natural Resources, and 3 Other Laws” deals with wide ranging subjects, including storm water, erosion, reptiles, and mopeds.  A late addition, Section 17, adds unions to the mix.

Section 17 seeks to modify North Carolina’s Right to Work law, more accurately described as “the right to work for less.”  This law allows workers who don’t pay union dues to benefit from a contract negotiated with the employer.  The General Assembly amended the right to work law during the 2013-14 legislative session, voiding agreements that condition the purchase of agricultural products on the union status of that producer.  That amendment aimed squarely at interfering with the Farm Labor Organizing Committee (FLOC)’s highly successful model of organizing tripartite agreements between farmworkers, growers, and the companies that purchase agricultural products.

The Indy wrote yesterday about the GA’s past meddling with FLOC:

In 2013, the legislature passed the sweeping Regulatory Reform Act, called House Bill 74, which stripped farmworkers of the ability to llectively bargain and barred corporations from putting pressure on the farms they get their products from to ensure fair labor standards. If HB 74 had passed a decade earlier, says Justin Flores of the Farm Labor Organizing Committee, the FLOC wouldn’t have been able to reach a collective bargaining agreement with the NCGA.

“What this General Assembly did, including Senator Jackson,” says N.C. AFL-CIO secretary-treasurer MaryBe McMillan, “was make farmworkers even more vulnerable by limiting their ability to come together and create these supply-chain agreements so they could get corporations to put power on growers to make sure farmworkers are paid decent wages and treated fairly.”

Now the General Assembly wants to step into private agreements between growers and farmworkers in settlement of litigation.  Section 17 would prevent agreements whereby a grower recognizes an employee union as part of a negotiation between the parties to a lawsuit.  It is unclear why growers would want their hands tied in such a way that they could not bargain freely to resolve litigation in a way that they consider to be beneficial to their interests.

Commentary

International visitors work in North Carolina, nationally through J-1 program

If you have traveled to the Outer Banks recently, chances are you have been waited on by an international student. Stores, restaurants, and hotels on the North Carolina coast are increasingly turning to temporary foreign workers to fill customer service and cleaning positions in the summers.

These workers come to North Carolina on what is known as a J-1 visa. The J-1 program was developed to provide a cultural exchange experience for international visitors. Described by the State Department as a “work and student-based exchange visitor program,” the J-1 program attracted 6,927 people to North Carolina in 2014 for a variety of different programs, among them camp counselor, au pair, intern, trainee, and summer work travel. A few of the programs are designed as specific learning opportunities for international visitors, scholars, and students, but others place people into short-term employment.

While some J-1 workers undoubtedly have a positive experience with their host employer, others have found the promised cultural exchange and training to be sadly lacking. Unfortunately, some J-1 workers have experienced exploitative working conditions. Dozens of J-1 workers from Asia and Eastern Europe went on strike in 2011 to protest working conditions at the Hershey packing facility where they were placed. A year later, the Department of Labor settled their complaint against the plant for $213,000 in back wages and $143,000 in safety and health violations.

Au pair workers on J-1 visas recently won an important victory when a federal judge in Colorado allowed their lawsuit against multiple cultural exchange sponsoring agencies to go forward. The workers, typically paid $197.75 per week, allege that the sponsoring agencies illegally conspired to keep wages low and failed to ensure they were paid the minimum wage and overtime. Au pair workers can get in touch with the attorneys conducting this litigation here.

J-1 workers in North Carolina can learn more about their rights through the North Carolina Justice Center’s new J-1 worker factsheet, found here.

Uncategorized

GAO finds hazardous conditions in poultry, meatpacking continue

poultry workers.jpg

The General Accounting Office (GAO) publicly released a report yesterday on workplace health and safety conditions in the poultry industry.  While noting a decline in injury and illness rates from 2004 to 2013, the report highlights the problem of underreporting and inadequate data collection.  The GAO report includes 3 recommendations for Executive Action:

Recommendation: To strengthen DOL’s efforts to ensure employers protect the safety and health of workers at meat and poultry plants, the Secretary of Labor should direct the Assistant Secretary for Occupational Safety and Health, working together with the Commissioner of Labor Statistics as appropriate, to develop and implement a cost-effective method for gathering more complete data on musculoskeletal disorders.
Agency Affected: Department of Labor

Recommendation: To develop a better understanding of meat and poultry sanitation workers’ injuries and illnesses, the Secretary of Labor should direct the Assistant Secretary for Occupational Safety and Health and the Commissioner of Labor Statistics to study how they could regularly gather data on injury and illness rates among sanitation workers in the meat and poultry industry.

Agency Affected: Department of Labor

Recommendation: To develop a better understanding of meat and poultry sanitation workers’ injuries and illnesses, the Secretary of Health and Human Services should direct the Director of the Centers for Disease Control and Prevention to have the National Institute for Occupational Safety and Health (NIOSH) conduct a study of the injuries and illnesses these workers experience, including their causes and how they are reported. Given the challenges to gaining access to this population, NIOSH may want to coordinate with the Occupational Safety and Health Administration to develop ways to initiate this study.

Agency Affected: Department of Health and Human Services

The report follows a recent release from Oxfam America focusing on the poultry industry’s denial of bathroom breaks to workers.