You’re fired! When retaliation and abuse are part of the job

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It was just after lunchtime in June 2015 when Rafael Rosales heard a knock on the door of his Los Angeles apartment. When he answered, two men were there, one with the word “frogtown,” a local gang, tattooed across the back of his head. They were there to deliver a message.

The conversation that followed was secretly filmed by one of Rosales’ relatives.

“This isn’t going to pass, you know what I mean?” said one of the men at the door. They told Rosales they were there to “ask nicely” and “give (him) some money.” In exchange, they expected Rosales to drop a lawsuit against Carousel Restaurant, where Rosales had been a cook. He and two other former workers were suing for stolen wages.

An attorney for the three workers said retaliation in wage cases is common, and this was just a particularly bad example.

“It’s clear it was direct threat of violence to this client if he decided to continue seeking his legal rights,” said attorney Sebastian Sanchez of the legal nonprofit Bet Tzedek. Sanchez said clients have told him they’ve experienced payback behavior ranging from being fired to slashed tires or car burglaries.

“It’s incredibly frequent,” said Sanchez. “I would say in a majority of cases that there is some sort of retaliatory behavior by an employer.”

KCRW spoke to dozens of restaurant workers throughout California and nearly all said they’ve experienced some sort of retaliation or abuse after asking for back wages, getting injured on the job, or both. Furthermore, efforts to fight back against this unfair and illegal worker treatment is hampered by case backlogs, secret settlements and intimidation.

In the Rosales case, he and two co-plaintiffs claimed years of wage abuse. Two of the workers said they worked up to 12 hours a day, six days a week for years without being paid overtime. The third worker said his hours were cut back when he finally asked for overtime pay after years of not receiving it.

The three filed their lawsuit in 2012. A year later, one of the workers quit and the other two were fired a year after that. Their lawsuit was recently settled confidentially.

One of Carousel’s owners, Mihran Tcholakian, claimed in a legal declaration that he had no connection to the men who showed up at Rosales’ house and could not explain why they knocked on his door. Tcholakian has not responded to calls for comment by KCRW.

Nevertheless, Rosales and his co-plaintiffs, one of whom also said he was visited by the two men, got a temporary restraining order against Carousel’s owners.

Laws protecting workers from retaliation have been on the books for decades, yet employers are rarely prosecuted.

“Bringing criminal cases for wage theft and retaliation is challenging because many prosecutors still think about these crimes as civil matters,” said Julie Su, California’s Labor Commissioner, responsible for enforcing the state’s retaliation laws.

A group of workers gather to get help with wage claims. (Photo: Karen Foshay)
A group of workers gather to fill out wage claims. (Photo: Karen Foshay) (The original image is no longer available, please contact KCRW if you need access to the original image.)

“Don’t complain or I will fire you”

Not all retaliation involves a knock on the door from a thug. Sometimes it comes from a process server.

In 2014, 14 workers at Little Tokyo’s Fu-ga filed wage claims for over $190,000, alleging tips were stolen and overtime rules violated. The owners retaliated by demanding workers resubmit citizenship paperwork and right-to-work papers, according to Kuma Kato, a former server and bartender at the restaurant.

“They were asking for documents having to do with your legal status in the U.S.,” said Kato. It is illegal for employers to demand such paperwork after an employee has been hired, yet threats of deportation are common in retaliation complaints brought by low-wage workers, including kitchen staff.

Some of the Fu-ga workers had to scramble to find lawyers to defend themselves against a defamation lawsuit brought by their employers. The suit was ultimately dismissed. “We believe that it was because they wanted to instill fear in the entire workplace,” said Kato.

A confidential settlement was reached between the parties in 2014. The restaurant has denied wrongdoing. A manager at the restaurant said the owners would have no comment on this story.

While working as a cook at Mary’s Place in Novato, California, Fidel Camaal sliced the tendons in his hand. He said he was told to make his own way to the hospital and not mention that the injury happened at work. Three days after getting medical treatment, he was back in the kitchen.

Camaal wanted his employer to pay for the medical bills.

“I said if you don’t pay me I am going to have to complain,” Camaal said. “The boss told me, ‘Don’t complain or I will fire you.’” A few days later, Camaal was let go.

According to Camaal, other employees were injured in the kitchen but feared if they said anything they’d be fired, too.

The employer, Nour Zeidan, ultimately paid a confidential sum to Camaal, who had filed a lawsuit claiming back wages and retaliation.

Zeidan denied that Caamal had been fired, saying he has simply stopped showing up for work. “If he comes back again, I’ll take him,” Zeidan added. “He’s like one of my sons.”

Zeidan also disputed Caamal’s claims of retaliation and wage theft. “He never worked overtime,” said Zeidan. “That’s not how my business works.”

Threats, intimidation, blacklists

Some of the workers KCRW spoke to said they were referred to with homophobic slurs, threatened with immigration raids, or fired after reporting injuries.

“I can’t work because of my legs,” said Azusa resident Primo Jimenez, whose bulging varicose veins make standing more than 10 minutes impossible.

Jimenez blames the painful condition on long hours working on his feet. For 12 years, he was a short order cook at Grand Burger in Glendora. Until recently, the restaurant was open 24 hours, 7 days a week. Jimenez said he sometimes worked for 32 hours straight.

Primo Jimenez holds up his phone, showing a photo of him flipping burgers at work. Vericose veins have made it too painful to stand. (Photo: Karen Foshay)
Primo Jimenez captured in a cell phone photo while a short order cook. Vericose veins have made it too painful to stand. (Photo: Karen Foshay) (The original image is no longer available, please contact KCRW if you need access to the original image.)

Jimenez said he was fired after filing a workers’ comp claim. He claims he’s also owed over $200,000 in stolen wages, but can only recoup $50,000 because the law only allows a worker’s case to go back three years.

“We have less than 10 dollars a day to spend on food,” said Jimenez, who hasn’t been able to find another job. He and another worker share a small home with two other families where they all split the $2,000 rent.

His former employer, James Kypreos, did not return repeated requests for comment.

Carlos Bowker, a retired investigator with the California Department of Labor Standards Enforcement, said restaurants are among the worst offenders when it comes to abuse and retaliation.

“There are a lot of threats and intimidation for people who file claims,” said Bowker. “And some companies have established a way of blacklisting people.”

The fear of retaliation is the top reason workers don’t speak out about wage theft and other unfair treatment, according to Labor Commissioner Su.

“The employer tries to rid themselves of a worker who complained or is a troublemaker,” Su continued. “But they also tend to send a message to the workers who stay: ‘This is what will happen to you if you disobey.’”

In a statement the National Restaurant Association said retaliation has “no place in any work environment and as the industry of hospitality, we take these issues very seriously. Many restaurants have implemented their own employee training programs and we continue to work with our members to help provide the knowledge and tools needed to build positive work spaces for employees and their customers.

Eduardo Ramos Sanchez never got regular pay stubs, instead keeping track of his hours on note pads and Post-Its. This made it difficult to claim back wages. (Photo: Karen Foshay)
Former cook Eduardo Ramos holds what he received as pay stubs. He claims he didn’t get paid overtime for more than 10 years and filed a wage claim. “I got fired for filing a complaint against the boss,” he said. (Photo: Karen Foshay) (The original image is no longer available, please contact KCRW if you need access to the original image.)

Retaliation is the top employment claim

Nationally, retaliation is the leading cause of employment claims filed with the U.S Equal Employment Opportunity Commission, accounting for about 45 percent of all filings across industries.

In California, state officials have struggled for years to manage the thousands of worker retaliation cases filed each year. Before Su’s appointment, the cases would pile up at the Labor Commissioner’s Office because there wasn’t an attorney assigned to work on them. The caseload has lightened after she hired three attorneys and 20 investigators but remains challenging.

Despite a law that requires a case be closed within 90 days, it takes an average of 300. In the interim, a case can fall apart.

In one instance, Su said the owners of a Chinese restaurant in Northern California went as far as putting the employees on a bus and driving them out of the area so that the retaliation unit investigators couldn’t interview them. This effectively killed the complaint.

“That’s why rapid, effective enforcement is so important,” Su said.

She created a system that allows her staff to fast-track certain cases and demand employers immediately reinstate workers. She’s also been able shorten the time it takes to resolve a case.

Julie Su (Photo: Karen Foshay)
Julie Su (Photo: Karen Foshay) (The original image is no longer available, please contact KCRW if you need access to the original image.)

Still, there have been problems.

In 2013 and 2014, as part of an annual review of California’s Division of Occupational Health and Safety, the U.S. Department of Labor (DOL) examined the Labor Commissioner’s unit responsible for investigating certain retaliation complaints. A DOL review of randomly selected retaliation cases found only 18 percent of investigations were completed within the required 90-day window, and whistleblower complaints were not being properly investigated. One case was dismissed without an investigation being done; a second was closed before witnesses or the employee were interviewed.

In a written response, Su blamed “coding errors” and said it would be “misleading to use these cases to support a proposition that cases have not been properly investigated.”

Su also said that her office received hundreds of retaliation complaints and did not have the staff to investigate them within the 90 days.

“With only five deputies to investigate all worker safety related retaliation complaints we were unable to meet this requirement, particularly there were cases carried over from year to year,” Su wrote.

The retaliation unit is still trying to clear a backlog of cases, while at the same time dealing with an increase in filings.

In July, the legislature approved funding to hire 50 people in the retaliation unit, which Su expects will ease the burden.

Everything’s a secret

Karen Carrera, an attorney in San Francisco who represents primarily low-wage workers, has handled dozens of restaurant cases in her career. She cannot talk about most of them.

“Ninety-nine percent of the time, the defense requires a confidentiality agreement,” said Carrera.
Workers who sign confidentiality agreements as part of a settlement may be barred from discussing the allegations, or how much money was awarded.

“Everything’s a secret,” said Sanchez, the attorney whose nonprofit represents low-wage workers, “and it works perfectly for the employer. They can break the law, pay a little money, and get away with it.” He said he rarely encounters defense lawyers who will let a client settle without a confidentiality agreement.

These agreements impede efforts to change restaurant industry culture, said Kathy Hoang, director of the Restaurant Opportunities Center of Los Angeles, a nonprofit that advocates for restaurant workers rights.
“They add to the challenge,” said Hoang, “Because workers aren’t aware others are fighting back and winning. They enforce a code of silence and veil of fear.”

Customers, too, are also kept in the dark.

“The public doesn’t find out,” said Sanchez. “The public doesn’t learn this is so common.”