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In two separate cases, judges in New York City have called for further actions by the state attorney general and workers themselves on the issue of whether day laborers — many of whom are immigrants — are receiving the wages they have earned. In Brooklyn Supreme Court, Justice Reynold N. Mason has refused to dismiss a complaint charging that a temporary employment agency is shortchanging workers. Mason has also asked plaintiffs to seek certification for a class action within two months. And in Manhattan Civil Court, Judge Doris Ling-Cohan recently called on Attorney General Eliot Spitzer to open an investigation into the nonpayment of day laborers. “Everyday, on many streets across this city, immigrant day laborers wait in the hope that they will be selected to perform construction work,” Judge Ling-Cohan wrote in Fernando v. Vasquez, SC 1815. “Some are here legally; some are here illegally. Nevertheless, having performed the work, they then wait and hope that they will actually be paid for their services.” In the Fernando case, four men won judgments in small claims actions against a hiring agent for a general contractor who did not fulfill his promise to pay a wage to the laborers. The general contractor, which did not have any agreement with the laborers, had no obligation to pay the workers and was dismissed from the case. While the four judgments in Fernando are small — the largest wage was $1,150 — it is Judge Ling-Cohan’s referral of the issue to the attorney general that may eventually have the greatest impact. The judge observed that lawsuits are rarely filed by day laborers for recovery of unpaid wages. And since there were some claimants who failed to appear on the day of trial, the court surmised that “the problem may be more widespread than just these four cases.” Ling-Cohan referred the issue to the New York attorney general for investigation and possible prosecution. Patricia R. Ballner of Manhattan was the attorney for the four claimants. The hiring agent, Frank Vasquez, represented himself pro se, according to Judge Ling-Cohan’s court attorney. In Brooklyn, Justice Mason refused to dismiss a complaint filed by day laborers who worked for Labor Ready Inc., a national temporary employment agency. In Flynn v. Labor Ready Inc., 35254/2000, those workers allege that Labor Ready offered to pay daily wages by check or by cash voucher. Laborers were instructed to take a voucher with a code number to a company-owned automatic teller machine, which dispensed their wages in cash upon entry of the code. Lawyers for the laborers say the ATM deducted a transaction fee of one dollar from the wages, and also rounded down wages to the nearest dollar. Therefore, workers who chose to be paid by cash voucher would see as much as $1.99 subtracted from their daily earnings, plaintiffs said. According to Lowell Peterson of Meyer, Suozzi, English & Klein, who is counsel to the laborers, Labor Law Section 193 prohibits involuntary deductions from wages. Local counsel to Labor Ready, N. Christine Carty, of Schnader Harrison Segal & Lewis, said that the “company believes that the claims have no legal basis under the statute cited in the complaint.” In court papers, Labor Ready argued that the fees are voluntary and incurred independently from the payment of wages. Defendants said that the workers chose to use the cash dispenser without objection, and should be estopped from protesting the method of payment. Peterson said that although workers could have obtained a full day’s wage had they opted to be paid by check, the cash-payment option was still unlawful under the Labor Law. “The law does not permit one to avoid liability for an unlawful act by offering the victim the opportunity to accept lawful treatment,” Peterson said. Peterson said that a statewide class action could involve “tens of thousands” of persons who have been employed through Labor Ready Inc. He also said that the plaintiffs will move for class certification “as quickly as possible.”

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