Retaliation a Real Possibility in Wage Disputes

Ernesto Martinez

Ernesto Martinez walks to his car parked in the far end of a parking lot at an outlet mall in Leesburg. He says his previous employer did not pay him all the money he was owed, and he considered filing a complaint with the state. But if he had done so, Virginia law would have offered him no protection against getting fired specifically for launching an investigation into wage theft. (Credit: Michael Pope)

Workers who feel they haven’t gotten all the pay that’s coming to them can file a complaint with the state.

But, as Michael Pope reports, they can also get fired specifically for filing the complaint.

It’s been a long day at work for Ernesto Martinez, and he’s walking to the far end of a parking lot in an outlet mall in Leesburg. He’s exhausted from all the hours that he put into his job here. But he’s also thankful that he has an employer willing to pay him what he owes. The last job he had did not. Through an interpreter he explains some of the problems with his old job in landscaping.

“They made us pay for uniforms and hardhats and gloves — all the safety equipment that the company is in charge of giving us that kind of equipment.”

And, he says, his employer didn’t pay him for all the hours he put in on the job. So he started talking to the other workers. They considered filing a complaint with the Virginia Department of Labor and Industry, which receives about fifteen hundred complaints a year. But …

“Most of these workers were scared. They were afraid to take these issues to the government. So it gets me mad and angry because they were already accepting the situation.”

They accepted the situation and decided against filing a complaint with the state. As it turns out, they had every right to be afraid. Wendy Inge (In-juh), who oversees these kinds of investigations for state says they have no protection against getting fired for filing complaints.

“Generally when the public calls in needs to file a complaint they’re advised, if they’re still working, they are advised that we don’t have any protection for their job and that that employer may retaliate.”

Pope: When you tell them, how do people react?

“Well they’re not very happy because they think that the law should protect them.”

But the law doesn’t protect them, at least not yet. One change lawmakers could make would be to forbid employers from firing employees who file complaints. But that would place an increased burden on the staff here. A decade ago, this department had 20 full time employees to investigate wage theft. Now there are only three.

“Right now we are limited in some areas that we just don’t have the resources to conduct those investigations right now.”

Pope: “And so what’s the consequence of that?”

“Well, one for example, is if you’re paid over $15,000 — if your claim is more than $15,000 — we don’t currently accept your claim.”

Pope: “So what happens then? You have to get a lawyer?

“Yes, you have to get a lawyer.”

Advocates for workers rights say lawmakers should make it illegal for employers to fire workers just because they file a complaint with the state. That’s a law that would come with a cost, though, because it would mean Virginia would need more than three people to investigate thousands of complaints. Delegate Paul Krizek is a Democrat from Fairfax County.

“Right now workers have the option of filing a complaint with the department with the Department of Labor or filing a private action. Neither option is working. Either you take your issue to court where lawyers are not incentivized to take the case due to the low payouts or you report to the government where there are only three employees handling thousands of cases.”

Ernesto Martinez never ended up filling a complaint. But he did get a new job, one that he’s happy with. And he has this message for lawmakers:

“We’re just asking for the lawmakers to put those laws in place to protect those workers and make sure that the companies are doing the right thing for the workers. And that’s my message to the lawmakers.”

In the upcoming session of the General Assembly, lawmakers on both sides of the aisle plan on pressing the issue — making it illegal to fire workers who file complaints. They’d also like to see more investigators on the job.

I’m Michael Pope.

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