Building the Wage and Hour Practice
The Latest from HLS Clinical Programs 2014-12-27
Via the Harvard Legal Aid Bureau
This past summer, the Harvard Legal Aid Bureau won a settlement for an undocumented woman whose employer had illegally withheld her overtime pay for the past ten years. Claudia * had consistently worked long weeks of 50 to 72 hours over the past decade, serving customers at a dry cleaning business. But her employer never paid her for more than 40 hours, racking up a debt of over $50,000 in unpaid overtime wages. “This kind of story is all too common, especially for undocumented workers” said Clinical Instructor Lee Goldstein. “There are many workers in the Boston area who are being taken advantage of by unscrupulous employers.” Claudia found her way to Kellie MacDonald ’15 when Greater Boston Legal Services referred her to the Bureau’s Wage and Hour practice. Since the Bureau does not receive funds through the Legal Services Corporation, the Bureau is not subject to federal funding restrictions. “We have the flexibility to serve undocumented clients, unlike many other legal aid organizations in the Boston area,” said Kellie. The Wage and Hour practice was created in 2005 in order to help workers seeking to recover unpaid wages from their employers. The practice expanded rapidly following the New Bedford textile factory raid in 2007, which brought public attention to salaries and working conditions at the plant. “The Bureau has had a significant role to play in developing important legal theories for workers – for example, agent-principal theories which can establish liability against big national franchisors and equitable estoppel to counter statute of limitation restrictions,” said Lee. In recent years, Kellie and other Bureau members have organized trainings at community organization City Life / Vida Urbana and restaurant union Unite Here in order to educate workers on employment law. The Wage & Hour practice is growing in response to increased interest among Bureau members. “We have a group of 2Ls and 3Ls excited about the opportunity to represent workers who are being denied the fair wages for their labor,” said Kellie. “These clients often have limited English skills, no immigration status and are the most vulnerable to exploitation.” Claudia spoke only Spanish and had no immigration status, after fleeing civil war in her native Guatemala in the 1980s. Thanks to Kellie’s extensive prior work with Spanish-speaking clients, Kellie was able to represent Claudia without the help of an interpreter. Kellie and Lee talked Claudia through the potential risks of her employer retaliating against her by contacting immigration authorities as well as how to avoid those risks. “Kellie did a wonderful job of devising an aggressive and informed legal strategy while maintaining an awareness of the possible impacts on other areas of Claudia’s life,” said Lee. “She was empathetic and understanding of Claudia’s needs.” The statute of limitations for overtime claims was not on Claudia’s side. Massachusetts law sets a two-year limit and the federal Fair Labor Standards Act set a three-year limit on the unpaid wages which could be claimed through the court system. Nevertheless, Kellie sent a letter to the owners of the dry cleaning shop, demanding all ten years of unpaid overtime pay under an equitable estoppel theory. Kellie argued that Claudia was owed the entire amount because her employer had failed to advise her of her rights to overtime pay. The employer responded with an initial settlement offer of $9,000 in January, and Kellie continued to negotiate over the course of several months. By May, Kellie had succeeded in getting a larger offer of $25,000. After this point, Bureau Summer Counsel Jason McGraw (Northeastern ’15) and Lisa Castillo (Iowa ’15) took over negotiations and succeeded in receiving a settlement offer of $30,000, which Claudia decided to accept. This settlement represented approximately six years of unpaid overtime wages, well beyond what was prescribed by the statute of limitations. “Advising a client on whether to accept a settlement is difficult, particularly when you know that she has been cheated out of her fair wages and deserves so much more,” said Jason “But with Claudia, we had to weigh how much more we could win in a negotiation against her need for financial relief.” “I was so happy to finally get paid for all my hard work,” said Claudia. “I hope that the Harvard Legal Aid Bureau can continue to help other workers in trouble.” The Wage & Hour practice has eight active cases in its docket, and Kellie hopes it continues to grow over the coming years. “The fact that students can be entrepreneurial and steer the direction of the organization, including building out smaller practice areas, is one of the most exciting things about being at the Bureau,” said Kellie. “We recognize the importance of this work and want it to be an integral part of the Bureau for years to come.” * name changed to protect confidentiality.