By Pete Kotz
By Michael Musto
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By Capt. James Van Thach told to Jonathan Wei
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By Steve Weinstein
In the summer of 2009, Vicente Martinez Ávila, originally of Puebla, Mexico, was hired for one of the most patriotic jobs his adopted country could offer: tending the grounds at the national cemetery in Cypress Hills in east Brooklyn.
Thousands of war dead, dating from the Civil War to Vietnam, are buried there, including two dozen Medal of Honor winners. They lie under row upon row of simple white headstones rising along a grassy slope topped by a monument.
Martinez's job was to water the new turf being laid down by a California-based company that won a $1.6 million federal contract to re-sod this national landmark. He was glad to have the work. It paid well: $16 an hour. It was also just a few blocks' walk from his home on Jamaica Avenue. The company asked him to arrive early, and that was fine with him. They also asked him to stay late. This was fine, too, because he knew that he was entitled to wages of time and a half for every extra hour worked.
"They asked me to work more and more hours," Martinez said last week via a translator. "I would get there at 5 in the morning and be there until after 6 at night." His watering was so important to the job that the company told him they needed him there on weekends and holidays as well. The grass didn't care what day of the week it was. "It had to be watered," he said. Again, this was all good. He was 60 years old, but he had family in Mexico and three children right here in New York to support. More hours meant more money, and what could be wrong with that?
The problems started, he said, when he looked at his paycheck and saw that none of the hours of overtime were listed. There were some 15 workers in his crew. Each noticed the same thing missing from their paychecks: many hours worked. They asked the bosses why this was. "The answer we always got," said Martinez, "was that the company was not in a position to pay right at that moment. They said they would pay us the next week. Then they said the following week. Every time we asked, they kept saying, 'Next week.' "
It wasn't as if the groundskeepers didn't stand up for themselves. "We tried," Martinez said. "We'd ask, 'Why are we not getting paid for these hours?' They told all of us the same thing: If we weren't happy with the job, we could leave. You know how it is. We had to keep the job."
Martinez suffered the biggest hit in this wage shortfall since his watering job required the most hours. "The others were doing the planting. I was the only one on a regular basis working every week that much time. There wasn't enough rain. They said we had to water the grass all the time."
Martinez's work was indispensable to the re-sodding of this important landmark until it wasn't anymore. "We had a week that it rained every day. They said they didn't need me to water. I said, 'What's up? When do I go back to work?' They said they would call me." The call never came. The company left town, and that was the last Martinez heard of the job and the many hours that never showed up in his pay envelope.
This alleged robbery would most certainly have gone unaddressed if not for the fact that Martinez knew someone who was a member of the group that calls itself Make the Road. He promptly went there and reported the theft. When it first started in 1997 in Bushwick, Brooklyn, the organization called itself Make the Road by Walking. The name comes from the poem by the great poet of the Spanish Civil War, Antonio Machado: "Searcher, there is no road. We make the road by walking."
The group has since logged so many miles walking and marching that it has now joined with other organizations and calls itself Make the Road New York. One of its many campaigns is to go after employers who walk the low road by stealing hours and wages from the city's immigrant workers. The complaint about Martinez's missing wages was filed with the Department of Labor by the group's lawyers. "We are waiting to hear from them," said Julia Dietz, an attorney for the group.
A phone call last week to the California company that hired Martinez, Veterans of the Land Inc., brought this response to charges that it had shortchanged its employee: "That is impossible," said an official there. "We are audited. Nothing has ever come up."
It should not be a shock to New Yorkers that stealing wages is a growth industry right now. Take a look around you at who is emptying the office trash baskets, clearing the restaurant tables, working on construction sites, painting fingernails in salons, and cleaning and stacking the vegetables in the markets. Overwhelmingly, it is immigrants with strong backs and little English. This makes them easy marks.
A couple of years ago, the National Employment Law Project did a big study, asking 1,400 low-wage workers in the city how things were going. The answer was that they risked being robbed blind every time they showed up at the job: One out of five weren't being paid the minimum wage. They had a good laugh when asked if they always got proper overtime: 77 percent said no; 69 percent said they didn't get paid at all when they put in extra hours. A majority reported that employers kept them in the dark about their earnings by not providing the paystubs that workers routinely scrutinize closer than lottery-ticket numbers. Those surveyed had also learned that it was dangerous to complain about any of these things: 42 percent said their reward for trying to do something about abuse—like join a union or call the authorities—had been either a cut in pay, suspension, or firing.
Part of the reason that this mass law-breaking continues in this allegedly forward-looking, pro-immigrant city is that the laws against it are feeble. For starters, the chances of being caught are slim. And even those found to have picked their employees' pockets end up shelling out not much more than the legal wage they were obligated to provide in the first place.
"There is a perverse incentive to steal your workers' wages," says Andrew Friedman, who helped found Make the Road and is part of a coalition trying to get the state legislature to approve a bill that would increase penalties and tighten the rules. This Wage Theft Prevention Act is already approved—in two different versions—by the Senate and the Assembly. Governor Paterson has agreed to sign the Senate's version. This puts the ball in Sheldon Silver's court. Last week, Silver's people were mum when asked why they weren't moving forward with this simple piece of social justice.
What should embarrass New Yorkers even more is this: Red state Arizona—that backward citadel of official anti-immigrant hostility—already has a much tougher wage-theft law on its books than New York. Yes, the state condemned for its stormtrooper tactics on those merely trying to earn a living passed its own law a few years ago that puts our rules to shame. Were those who allegedly fleeced Vicente Martinez Ávila out of his many hours nabbed doing so in the Grand Canyon State, it would cost them far more dearly. Let Shelly Silver explain that one.
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