California law and legal framework

¶ … population of California underwent dramatic changes in the last 60 years. In the 1940s, the Latinos were a minority of only 6% of the state or roughly 374,000 (Bautista 1991). But by 1980, the Latino population grew to 4 million, almost doubling the figure and increased to more than 7 million in the 90s. In the 2000s, Latinos accounted for a third of California's total population, creating huge political, economic and social impact upon its entire society (Bautista). Besides sheer volume, the continuously increasing Latino population has developed the distinct feature. Before the 60s, immigrants were rare and less than 20% of these Latinos were foreign born, most of them from Northern Mexico. Immigration, however began to fill the ranks since the 80s so that, today, the majority of adult Latinos in California are immigrants. These developments are among the most important criteria to social and demographic policy makers in the state (Bautista) as well as other states in the Union. One area is labor.

Current studies showed that many of them are engaged in some work (Bautista), but their participation in the labor force has been poorly rewarded and has not significantly improved their poverty level. The state, however, continues to form and enforce laws that address their condition or affect them.

One such landmark law was the California Agricultural Labor Relations Act of August 28, 1975, enacted in response to the almost violent agricultural disputes in the state that threatened its very agriculture economy. The Act insured justice and peace for all agricultural workers by guaranteeing labor stability (California Labor and Workforce Development Agency 2004). It provided for orderly processes in protecting, implementing and enforcing the rights and responsibilities of employees, employers and labor organizations in their relationships. Its implementing agency or arm was the Agricultural Labor Relations Board, which determined and implemented secret ballot elections, employees' right to be represented by a labor organization in collectively bargaining with their employer and which prevented or remedied certain conduct, including unfair labor practices.

Its authority was shared by a five-member Board and a general counsel, all appointed by, and subject to, the Senate. Their duty was to prevent impediments to, and promote, the free exercise of employees' rights (CLWDA). When a charge was filed, the general counsel conducted an investigation and filed a complaint if he verified it. The Board then heard the complaint. The law required administrative law judges to evaluate evidence and render written verdict. The findings, conclusions and recommendations of the judges were subject to appeal. The judges reviewed their own decisions, conclusions and recommendations. Any dissatisfaction with the Board's order could be raised for review to the Court of Appeal.

Supplemental hearings, called compliance hearings, were conducted in the case of unfair labor practices in determining the amount of liability. These were typically heard by administrative law judges who rendered a verdict for review by the Board. The verdict could be raised with the Court of Appeals, but without an appeal, the Board could seek enforcement of the decision in a superior court.

On March 29, 2002, however, the Supreme Court made a ruling, which eliminated back pay for undocumented workers victimized by their employers, in effect nullified this farm labor law. The ruling, according to the United Farm Workers president Arturo S. Rodriguez, created "a permanent underclass of easy-to-exploit semi-slave laborers (La Prensa 2002). A dissenting justice said this would also increase illegal immigration, as the ruling encouraged employers to hire only undocumented employees who could be violated. It was a most devastating act to the Latinos not only in California but all over America, many of whom are undocumented workers. It was a direct attack on their welfare when their employers fired them for union activities or refusal to bargain for a union contract (La Prensa). An employer could be convicted for illegal termination but would not be required to reimburse the terminated employee's lost pay if he or she was undocumented.

Critics further commented on the far-reaching effects of this ruling in denying undocumented workers protection under state and federal laws on minimum wage and hour protection, overtime pay and compensation coverage. An unscrupulous employer could go ahead and cheat undocumented workers of their rightful wages and they could not file a complaint with the Labor Commissioner because no law existed to protect them. This was how undocumented workers in California, many of whom are Latinos, could evolve into become an underclass of semi-work slaves.

A second law was AB 2832, which would increase California's minimum wage by $1 per hour by year 2006 (California State Assembly 2004). Assembly member Sally Lieber sponsored the bill, which passed the Legislature and signed by the Governor. It would raise the minimum wage at $7.25 beginning January 2005 and further with a 50-cent increase in January 2006. This would be the first increase since 2002. Assembly member Lieber noted that, although California's minimum wage is higher than the federal rate of $5.15 per hour, it has the lowest in the tri-state in the West Coast and that this would only be a very small step and modest increase. Nonetheless, she saw that it would still help millions of workers employed in minimum wage jobs in the state, most of whom are immigrant-adult heads of families. She noted that three million workers in California make less than $7 an hour in supporting their families and felt that this income would not be enough for their needs, being without government service or support.

In the past, the state's Industrial Welfare Commission was in charge of reviewing the adequate minimum wage level and then recommending whether to adjust or rescind an increase (California State Assembly). But in February 2003, the Commission stopped discussion further increase in the minimum wage, which it deemed was unnecessary.

Assembly member Lieber also said that the minimum wage increase would also benefit part-timers and teen-age workers in fast food restaurants. She said this in response to a comment by a business person who said during one policy hearing that an increase would have create a ripple effect throughout the economy and increase wags throughout California's economy. She stressed that that was the precise objective of her bill (California State Assembly). And since a vast third of California is Latino, the benefits could accrue to this sector.

A third law recently approved by the Full Assembly was 2545. It is an important worker safety legislation to enforce current laws that would forbid employers from locking in their employees in their place of work (California State Assembly 2004), providing only emergency exits. The bill addressed the disturbing and irresponsible work policy that threatened the health and safety of workers, according to its sponsor, Assemblyman Paul Koretz. Koretz is also the chairman of the Assembly Labor Committee.

The bill was the Assemblyman's response to published news reports on locking-in incidents at the Wal-Mart and its subsidiary Sam's Club. According to the news, employees were locked in overnight, during which some were injured while working and medical help was delayed for hours because of the lock-in policy. Korentz stressed in his bill that any such policy that required trapping workers presented an inherent risk to their health and lives, and that, therefore, they should not be subjected to such threat and indignity.

Assemblyman Korentz also said that the current California Occupational safety and Health Administration (CAL-OSHA) regulations have already reverted lock-ins into illegal practices, although these are not adequately being implemented or there is insufficient awareness of these regulations. Korentz's bill doubled the current penalty imposed by CAL-OSHA for failure to comply with safety standards from $15,000 to $30,000 if the employer fails to report the consequent death of an employee in violation of the regulations, or if the employer compels an employee to violate them.

Employers who impose a lock-in policy argued that it is the best way to prevent in-house theft. But Assemblyman Korentz said that the policy improperly gave greater value to merchandise than the health and lives of workers.

Proposition 227 has been viewed as a major initiative within the last two decades to control the continuously growing Latino population in California, now approximately 42%, with Blacks and Asians accounting for only 12-14% (Socialism Today 1998). Statisticians projected the figure to swell to 52% or more by 2002. The Proposition was believed to be hasty move on the part of the right wing to prevent the transfer of political power to the Latinos.

It was also viewed as a follow-up to Proposition 187 of 1996, which was passed by a 75% majority and deprived undocumented workers of all services from education to health care. The Immigration and Naturalization Services said that the affected workers numbered between three and seven million (Socialism Today). When challenged on constitutional grounds, Congress passed and then President Clinton signed Proposition 209 in 1997, which eliminated many of the services targeted by Proposition 187, denied even legal immigrants of those social services, and refused these immigrants affirmative action programs in higher education and hiring. Most of those affected were Latinos, but included African-Americans and other minorities who faced discrimination in schools and high-quality jobs (Socialism Today). School registration for Latinos dropped at more than 60%. The deemed motive behind was to assert white vote supremacy in order to slow down or eliminate Latino empowerment through the electoral and educational systems. They are not only the fastest-growing immigrants in California: statisticians also say that it would take six to eight years for any demographic change to catch up politically (Socialism Today).

Millions of Latinos have been unable to vote. The INS is swarmed with 1.5 million applications for citizenship and the legal time to obtain citizenship in California has been extended to two years from only seven months. Moreover, a big section of the Latino population is under 18 years old, the legal voting age. The Bureau of Census itself estimated that, at present trends, Latinos would constitute 45% of the electorate in the next election or even the majority vote (Socialism Today).

A fifth law was the Fair Labor Standard Act of 1938, part of which enforced the Anti-Child Labor Law, in turn prohibiting those 18 years old and younger from working in most factories and doing hazardous jobs (Julian Samora Research Institute 1997). The law further prohibited those below 16 from working during school days and those below 14 from paid employments, except farming.

Yet the stark reality was that, in a series of studies and interviews conducted in December 1997 alone (Associated Press), 165 children were found working illegally in 16 states, from New Mexico to New York City (JSRI) in U.S. companies, such as Campbell Soup Company, Chi-Chi's Mexican restaurants, ConAgra and Costco. The Department of Labor could confiscate child labor products, including the salsa from chili peppers picked by children. Researchers found most of them in farms, the youngest working at the longest hours for the least pay (AP). That year, 104 children were found to have worked in agriculture for five months; 123,000 in 1996; and 13,100 working in the garment industry.

In 1997, the Department of Labor apprehended 6,735 child labor violations at 1,546 establishments, a fourth of which were fast food restaurants, and found children as young as four, picking chili peppers in New Mexico (JSRI). It launched the Operation Salad Bowl to crack down on child labor violators in the agricultural sector, particularly the lettuce, tomatoes, cucumbers, onions and garlic fields in cooperation with the USDA. The law also prohibits the use of these hot goods for shipment.

The Department was also criticized for failing to penalize child labor violators. The maximum in 1997 was $10,000 and the average was $887. A farmer who employed a 12 or 13-year-old during school days was subject to a $500, with a 30% reduction for businesses with 20 employees or fewer. But repeat offenders could be imprisoned.

Child labor violations and concerns gathered deserved attention. Senator Tom Harkins of Iowa promised to a bill that would toughen penalties on child labor violators and to double the DOL budget for the enforcement of the anti-child labor law to $15 million. In the meantime, the California Labor Commissioner was said to have issued 833 citations for child labor violations in 1990 and 310 in 1995. California law requires that anyone under 18 to have a work permit in order to work. A work permit is issued only on certain instances to children younger than 14 (JSRI).

Quite a number of these young workers are Latinos in California. One of them was 17-year-old Apolinar Ramirez, a Latino, who worked for three years, picking lettuce in Santa Maria Valley and died in a crash while driving and after a full 10 hours of work in the farm last month (Associated Press 2004). Apolinar did not attend school.

His death and accident sounded a stronger call for attention to child labor and revealed the open secrets of strawberry and vegetable picking industry in Santa Maria. Observers were not so shocked, as underage full-time labor was common in the place (AP). What was new and disturbing to them was that more teen workers were emigrating from Mexico and proceeding straight to work in the fields in numbers that made older field workers uneasy and fearing for their jobs.

Farm employers want younger and stronger field workers, who keep coming, according to Pedro Lopez, head of the United Mixtec Farm Workers Organization in Santa Maria (AP). Young people move and work faster. But he eased out the apprehensions of older workers by assuring them that if they lived in Santa Maria, those younger workers know that older workers have the right too.

The ingress of young migrant workers in the field did not escape the observation of the courts in Santa Maria. Superior Court Judge Barbara Beck noticed that they seemed to be 15 or 16 years old and their arrival was prevalent (AP). She commented that the youngsters worked in the field, at car wash joints and at fast food outlets but without the ability to check for IDs. Apolinar's parents said they depended on their children's wages, and these included Apolinar's which came from his lettuce-picking in Santa Maria Valley.