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ALC @ 50: ‘Transforming How We Look At Who Is An Employer’

November 15, 2022 Perspective

This year, Advancing Justice - Asian Law Caucus turns 50. We’re taking a look back at powerful cases and campaigns from our history, including those that continue to shape our legal services, advocacy, and community outreach today. Our 50th anniversary celebration theme, “Tomorrow’s World Is Ours To Build,” takes its cue from Yuri Kochiyama’s inspiring call to action.

In celebration of our 50th anniversary, former and current ALC workers’ rights staff met earlier in Oakland to talk about our history representing and organizing with immigrant workers who are too often denied good pay, safe working conditions, and respect at work. Watch the full video, Economic Security is Ours to Build.

The panelists’ work at ALC spans from 1983 to today. One theme resonated from decade to decade: immigrant workers’ campaigns to hold accountable those with the most power to decide wages and working conditions.

The Power Lies with Manufacturers, Design Houses, and Retailers

Lora Jo Foo, who worked at ALC from 1992 to 2000 and co-founded Sweatshop Watch, opened the panel by sharing what brought her to community lawyering and her focus on workers’ rights:

I was born and raised in San Francisco’s Chinatown where my mom worked in a garment factory 7 days a week, 12 hours a day. At the age of 11, I joined her in the garment factory, in the summer, after school, on weekends, working behind an industrial sewing machine. I was such a small child at age 11, you could barely see me above the sewing machine…The issue of sweatshops, garment sweatshops has just been part of my childhood and part of my history. At age 16, I tried to get my mom to file a lawsuit against her boss for minimum wage violations, and of course she said, “The boss will kill me. Are you kidding?” So that was my first failed attempt at organizing…

Lora Jo goes on to explain how she became a union organizer at a garment factory in SF’s Mission District and in local hotels, and then found her way to law school. She joined ALC first as a summer law clerk in 1983, the same year the organization was petitioning federal courts to overturn Fred Korematsu's conviction.

Lora Jo’s assignment that summer was organizing garment workers as part of a lawsuit against Fritzi, a large San Francisco-based garment manufacturing company. This case, Sai Chen Ha et. al. v. T & W Fashions, Inc. and Fritzi Manufacturing Company, was the first time a lawsuit had ever been filed to hold both a contract shop and manufacturer jointly liable for wage and hour violations. As Lora Jo explained, “when we analyzed the garment industry, we realized that you cannot organize small shop by small shop…All a garment manufacturer had to do was just walk from one shop to the other until they found a shop willing to work at the lowest wages, lowest contract price. When that happens, a sewing shop boss cannot pay minimum wage or overtime. In the structure of the industry, the power doesn’t lie with sewing shop bosses. The power [lay] with the manufacturers, design houses that gave the work to the sewing factories, and to the retailers who sourced and bought from the manufacturers.”

Lora Jo walks through 20 years of community lawyering and organizing to go up that chain of accountability and expand what the law defines as the employer. In the Sai Chen Ha case, ALC represented former and current garment workers, who were all Chinese and mostly women. As the case progressed, staff at Equal Rights Advocates (ERA) joined as co-counsel. In a 1998 Berkeley Women's Law Journal article, Judy Scales-Trent wrote that “ERA and ALC argued that because the manufacturer knew that the agreed-upon contract price was not enough to enable the contractor to pay the minimum wage, and because the manufacturer had a daily, ongoing relationship with the contractor, the manufacturer as well as the contractor should be held liable for damages.”

As Lora Jo notes in the video, the workers and their lawyers won a summary judgment that rejected the manufacturer’s attempt to dismiss the case against them, affirming their joint liability. After nearly three years, T & W Fashions and Fritzi settled with workers for $172,000, marking the first time that a garment manufacturer was forced to pay damages for its contractors’ wage violations.

From there, the team continued to provide direct legal services and help more garment workers learn and assert their rights. Six years later, in 1989, ALC brought another impact case, Anna Chan v. Ocean Garment Manufacturing Ltd., Moviestar Garment Manufacturing Inc. et. al. This case went further to expand the definition of an employer. For the first time, a garment manufacturer was held directly responsible as the joint employer for the wages and hours of its contract shop. In the Anna Chan case, ALC showed that the garment manufacturer directly controlled the wages, hours and working conditions of its contractor’s employees.

January 1986 Community Pamphlet on the Garment Industry

In 1995, Thai and Latina garment workers in El Monte and their fight for freedom catapulted these issues to the front page of every newspaper. For upwards of seven years, 72 workers had been held captive and forced to work 14-18 hour days under armed guards sewing the garments of major retailers. ALC along with Asian Pacific American Legal Center (APALC) filed a lawsuit against these retailers and survived a summary judgment motion. In that motion, a federal district court held that even where there is no showing of direct control of wages, hours and working conditions, a retailer or garment manufacturer could be jointly liable if it had indirect control. Eventually, workers won a $4 million settlement, and some of the workers invested part of their settlements to create a new garment worker cooperative in Los Angeles.

Lora Jo also points to a 1997 U.S. Department of Labor case against a contract shop where the court ordered the manufacturer to assess whether the contract price was high enough for their contractor to pay minimum wage and overtime. As she puts it, “the courts finally understood what we were saying for over 10 years." As each case and organizing campaign built on the ones that preceded it, a growing coalition led by ALC, APALC (now AJSOCAL), Garment Workers Center, Sweatshop Watch, UNITE, and Equal Rights Advocates came together to pass AB 633 in 1999, the country’s strongest anti-sweatshop law. As a 2005 evaluation of the legislation detailed, “with its wage guarantee, AB 633 explicitly acknowledges the economic reality that large clothing companies exert control over the working conditions under which their garments are produced - and thus should not escape liability when workers are deprived of their hard-earned wages.”

More than 20 years after the Sai Chen Ha case, what had once been written off as improbable accountability was now the floor in California, home at the time to the largest concentration of garment workers in the country.

‘Going Up the Chain of The Fissured Workplace’

Of course, as with any legislation, the fight to fulfill the promise of policy change continues - in the garment industry and many other industries. In fact, garment workers and the Garment Worker Center recently secured an important legislative victory. With the Garment Workers Protection Act, California is now the first state to require hourly wages for garment workers and prohibit pay by piece rate. The bill expands the definition of garment manufacturing to include any entity that is “dyeing, altering a garment’s design, and affixing a label to the garment.

Hina Shah
, who worked at ALC from 1998 to 2000 and is now executive director of Women’s Employment Rights Clinic, shares in the video about how our work with garment workers sharpened our campaigns in other industries:

A lot of the work that the Caucus has done in common accountability and going up the chain of the fissured workplace, we used that model to bring it to our work in the electronics industry…A lot of the Caucus’ early work in garment, not only was it a model for the rest of the work we’ve been doing, but it has also transformed how in California we look at who is the employer.

While Hina was at ALC, she led a case with ERA challenging electronics corporations for violating the rights of Southeast Asian workers who were manufacturing circuit boards in their homes. The campaign took on the contractor who directly hired these workers, as well as the manufacturers and the companies ordering and selling those parts. It was also one of the first cases to tackle the misclassification of workers as independent contractors in the electronics assembly industry.

Today, we’re seeing parallels in the experiences of restaurant workers, home care and child care workers, janitorial workers, rideshare drivers, and many others. The pandemic further exposed how our systems lack the necessary accountability measures to ensure essential workers can pull through crises and care for themselves and their families. In a recent survey of local workers paid less than $25 per hour, more than half were not able to take paid sick leave, 29% did not know if they had paid sick leave, and 17% could not accrue paid sick leave because they are classified as independent contractors or have more than one employer. These results informed the Bay Area Essential Workers Agenda, which workers are using to advocate for a just recovery.

'No Multimillion-Dollar Corporation is Above Workers' Rights'

Uber and Lyft now exemplify the extent to which corporations will go to deny responsibility for devastating the lives and livelihoods of people in the pursuit of profits. As we wrote with partners in an amicus brief supporting the constitutional challenge to Prop 22, “hundreds of thousands of workers have suffered as a result of a handful of corporations deciding, unilaterally, that their workers were not employees. By drafting and promoting this unlawful measure, those corporations deny workers necessary certainty and clarity regarding their rights on the job, even as those workers continue to face an unprecedented pandemic and economic calamity.”

Building on our long-standing support for workers who too often considered outside the scope of labor and employment protections, we started helping rideshare drivers trying to get their unemployment insurance during the pandemic. The California Employment Development Department (EDD) had been delaying drivers’ claims and requiring that they go through individual driver-by-driver inquiries to assess whether they were employees or independent contractors. Our advocacy has since pushed EDD to streamline their process for rideshare drivers claiming their unemployment benefits and the individual audits have largely ended.

Our partnership with rideshare drivers continues to grow. We’re currently working with rideshare drivers on a job security survey and helping them explore creative ways to challenge unfounded deactivation decisions by Uber and Lyft. We’re also supporting rideshare drivers to hold Uber and Lyft accountable for workplace safety violations. Earlier this year, Cal/OSHA cited Lyft and Uber for COVID-19 safety violations, marking the first time that a state safety agency has extended workplace protections to gig workers. Robert Moreno, a rideshare driver in San Diego, told the San Francisco Chronicle: “Finally Uber and Lyft are being held accountable for their lack of attention to drivers’ and passengers’ health and safety in the name of greed…No multimillion-dollar corporation is above workers’ rights.”

Across the country, collective worker action and union organizing is surging in more and more industries and workplaces. Almost half of all U.S. workers who aren’t in a union say they would join a union tomorrow if they could. Alongside workers who are predominantly people of color and immigrants, we’re steadily expanding the definition of what is considered a workplace and an employer, and reimagining a world in which all workers have the right to life-sustaining wages, health and safety, and a meaningful voice on the job.