Publication

Voices for Justice

This booklet is designed to educate farmworker and other low-wage immigrant women about their legal rights.

Introduction

This booklet is designed to educate farmworker and other low-wage immigrant women about their legal rights. Many brave women have come forward to share their experiences so that other workers can learn about their rights and will know that they are not alone. Join these women in the fight for justice by speaking out against discrimination and abuse. We hope that you appreciate these women's stories and the legal information that accompanies it. If you have any questions about your legal rights or the information in this booklet, please contact Esperanza: The Immigrant Women's Legal Initiative at 1-800-591-3656. Our services are completely free and we can help women without regard to immigration status.

Employment Discrimination

Discrimination in the workplace is illegal! Title VII of the Civil Rights Act is the federal law that protects workers against discrimination based on race, color, religion, sex and national origin. This law protects people working in a place with 15 or more employees, but some exceptions do apply. You should contact our office or a lawyer in your state to find out if you are covered by the law.

It is illegal to discriminate against someone for one of the reasons listed above. There are many ways employers can illegally discriminate against someone. Some of these ways are: in the hiring and firing, job assignments or employee classification, in compensation or other terms and conditions of employment. The terms and conditions of employment include such things as opportunity for advancement/promotion, work rules, and other benefits like retirement plans.

In addition to Title VII, there are other laws that protect workers against discrimination based on their age or disability.

The Equal Employment Opportunity Commission (EEOC) is the federal government's agency that protects workers from employment discrimination. If you feel you are being discriminated against, call our office and we can help you find the EEOC office near you. You must usually make a complaint with the EEOC within 180 days of the discriminatory act. It is important to file a charge of discrimination as soon as possible to ensure that you are covered by the law.

The federal law applies in the whole country, but some states also have laws that protect against discrimination. These laws might protect you if you work in a company with fewer than 15 people. They may also prohibit discrimination for other reasons, like marital status or political affiliation. If a state has an anti-discrimination law, an individual may have 300 days to file a charge with the EEOC if they first file a complaint with an authorized state agency. A person may also have a longer filing time to make a complaint with the state agency under the state law. In addition, some states allow a person to file a case directly in state court without first having to file a charge of discrimination.

Consult with a lawyer in your state if you think that you have been discriminated against to learn more about the state laws where you live and all other information about filing a discrimination complaint.

Gender Discrimination

Discriminating against an employee because of their gender is illegal in the United States. A person's gender is also referred to as their "sex," as in whether the person is a man or a woman. Gender discrimination can take many forms, including sexual harassment, pregnancy discrimination, pay discrimination, and discriminatory job placements. A company may be liable for sex discrimination committed by the owner of the company, supervisor, employees, or third parties (for example a customer in a store).

Sexual Harassment

Sexual harassment is any unwelcome sexual act against an employee. This treatment can make you uncomfortable and afraid. A man or a woman may suffer from sexual harassment committed by a coworker, supervisor, or boss. A person of the same sex or opposite sex may commit sexual harassment. Often workers fear that they will lose their job, earn less money, or be mistreated if they complain. It is against the law for an employer to retaliate against an employee for rejecting sexual harassment or for filing a sexual harassment complaint (see page 18 for more information on retaliation). The following is a list of some of the behaviors that can constitute sexual harassment:

  • Unwelcome touching;
     
  • Vulgar remarks;
     
  • Requests or demands for sex;
     
  • Promises of job benefits based on sexual favors;
     
  • Threats of firing for rejecting sexual demands or requests;
     
  • Sexual Assault

What should I do if someone sexually harasses me?
Tell the harasser NO and that the actions are not welcome.

  • Keep records of the date and the type of harassment when it happens (you can use the notes section in the back of this booklet).
     
  • Report it to your bosses (or the person named in the company policy) using the company's internal complaint process.
     
  • If there is no complaint process, you should still report the harassment to your supervisor (or someone else with authority at the company) and to federal, state, or local offices that protect employees from discrimination. You can call our office to get the phone numbers for an office near you.
     
  • If you are the victim of a crime, like rape, notify the police as soon as possible.

Guadalupe
When Guadalupe began having problems with her supervisor where she was working, she felt she did not have anywhere to turn. The supervisor would say sexual things to her and ask her to have sex with him. He would kiss her and touch her against her wishes. His treatment got worse and worse, until he even became violent and threatened her at knife-point. She was scared and did not know what to do. As far as she knew, the company did not have a process that she could use to file a complaint about sexual harassment. She is from Mexico and did not know a lot about US law. She did not know how to make her supervisor stop, and she could not work under such terrible conditions. Eventually she left her job because she felt she had no other choice. When she learned about her legal rights, she filed a complaint for sexual harassment with the Equal Employment Opportunity Commission (EEOC). After the agency investigation, she sued the company in court. Eventually, she reached a confidential settlement with the company, and believes that the company will treat other women better in the future, as a result of her case.

Pregnancy Discrimination

The Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, prohibits discrimination on the basis of pregnancy, childbirth, or medical conditions related to pregnancy. This law only applies to places that employ 15 or more workers.

  • If a woman can perform the essential functions of a job, it is illegal to refuse to hire her based on pregnancy.
     
  • A pregnant woman cannot be fired because of her pregnancy, childbirth or medical conditions related to pregnancy if she is able to perform the essential functions of her job.
     
  • If a woman is sick or temporarily unable to perform her job because of her pregnancy, childbirth, or medical conditions related to pregnancy, her employer must treat her the same way that the employer treats any other worker who suffers from a temporary physical or mental impediment.
     
  • The employer must keep the job available for a woman who misses work because of her pregnancy, childbirth or medical conditions related to pregnancy for the same amount of time that the job would be left open for any person who misses work because of any other illness or incapacity.
     
  • Some women may qualify for additional leave under the Family Medical Leave Act.

Verónica
Verónica was recruited from her hometown in Guanajuato, Mexico to come to the US on a special visa, called an H2A visa. When she arrived in the US, after paying a lot of money in visa and travel costs, she worked hard, cutting greens and harvesting onions. Although she was 4 months pregnant when she arrived, she was always a good worker. When the field work became too hard for her, she asked her crew leader to transfer her to the packinghouse, like they would always do for workers who were sick or injured. After she had worked in the packinghouse for about three months, the supervisor and his wife came to talk to her. They told her that she should go back to Mexico to have the baby and that they did not have a job for her anymore. She was 8 months pregnant and suddenly found herself without a job to support herself and her family. She also became homeless because she was kicked out of the employer-provided housing. What happened to Verónica is called pregnancy discrimination. No woman should lose their job just because she is pregnant. She joined a lawsuit with some other workers and alleged pregnancy discrimination. Verónica and the other workers eventually reached an agreement with the farm labor contractor who had discriminated against her.

Equal Pay Act

The Equal Pay Act (EPA), an amendment to the Fair Labor Standards Act, requires that employers pay equal pay for equal work regardless of your gender. The law was created to protect women, but it also protects men against pay discrimination.

Under the law, work is "equal" if there is the same:

  • Skill or use of practical knowledge
     
  • Effort
     
  • Responsibility
     
  • Working conditions, including danger, temperature, ventilation, etc.

Under the law, "pay" includes salary, overtime, bonuses, and vacation pay. It is legal for people of different sexes to earn unequal pay if the work is not equal. For example, it is legal for a company to pay differently if one person has seniority over the other, one person has better quality or quantity of production, one person is paid more based on merit, or if there is another valid reason that has nothing to do with the person's gender.

A company can not retaliate against you for making a complaint for violations of the EPA. Also, if there is a complaint that women are being paid less than men for equal work, the company can not lower the men's pay to comply with this law.

Some exceptions apply to the types of employers who are covered and the number of employees needed to make a claim under the EPA. If you believe that you were not paid equally for equal work, you may have various options. You can file a lawsuit directly in court within a specific time or you can choose to file a complaint with the Equal Employment Opportunity Commission. Contact our office or a lawyer in your area to learn more about the deadline for filing a lawsuit, making a discrimination complaint, or other information about your rights.

Making a Complaint for Discrimination

It is hard to know what to do when you feel like you are being discriminated against. If you decide that you want to file a formal complaint for discrimination, here is what you can expect to happen.

The first step is to make a complaint following the company's internal complaint procedure. If the company does not have a policy, you should complain to someone in the company who has authority.

If the company does not fix the problem, you can then file a "charge of discrimination" (a formal complaint) with the EEOC and/or with the state agency in your state that handles workplace discrimination. If the discrimination against you happened more than 180 days ago, you may no longer have the right to file a charge under federal law. Some state laws allow for a longer filing time with the state administrative agency. If a state has an anti-discrimination law, an individual may have 300 days to file a charge with the EEOC if they first file a complaint with an authorized state agency. You should consult with a lawyer in your state to determine the filing deadlines in your state. Regardless of the deadline, you should always file your complaint as soon as possible to ensure that you are protected by the law.

After you file your charge with the EEOC, an investigation will begin.

The company will receive a copy of the charge within 10 days. The company has 15 days to respond after they receive the charge. They will write a "position statement," describing their side of the story. The EEOC has 180 days to investigate, although they could take longer.

After the 180 days has expired, you can request a letter that gives you permission to sue the company in court. After you receive this letter, you have 90 days to file a lawsuit in federal court. The investigation procedures and time for filing a complaint may be different under the state law where you live. Contact our office or a lawyer to find out more about procedures in your state.

Erandi
Erandi is from Mexico. She worked at a fast food restaurant. She and the other workers often had to arrive for work very early and were busy the whole shift. The work was hard, but it was tolerable. One day, a new male manager started to work at the restaurant. After only a short while, he started to make comments towards Erandi and the other Latina women who were working there. The new manager would call the women names, insult them, and make sexual comments. He also made derogatory comments about Mexicans. Erandi talked to her coworkers about this and they agreed that this was wrong and that it was discrimination. They tried to resolve the problem with the company, but things only got worse. They were eventually fired by the company for complaining. They talked to people in their community and to a lawyer about their options. They decided to bring a lawsuit against the company and its owner for sexual harassment, national origin discrimination, and retaliation. Now, they have also become involved with a community group to talk to other women about their experience.

Retaliation is Illegal

You have the right to reject discriminatory treatment or conditions and to complain about discrimination in your workplace. Title VII of the Civil Rights Act makes it illegal to retaliate against those who assert their rights under the law by rejecting discrimination or making a complaint of discrimination with the company or an anti-discrimination agency.

Despite the law, employers sometimes do retaliate against workers who assert their legal rights. Retaliation can take many forms. Firing a worker, reducing their work hours or pay, or refusing to rehire a worker all can constitute illegal retaliation.

Workers sometimes experience retaliation not only for complaining themselves, but also when they serve as witnesses in someone else's case, and even for being related to someone else who made a discrimination complaint. All of these forms of retaliation are illegal.

If you believe that you have been retaliated against, you have the right to file a charge of discrimination with the EEOC. You should contact the EEOC or an attorney in your state as soon as possible if you feel that you were retaliated against.

Family Medical Leave Act

The Family Medical Leave Act (FMLA) protects individuals when they or someone that they love is faced with serious medical conditions or are in need of medical care. According to the FMLA, you are entitled to up to a total of 12 weeks of unpaid leave per year for:

  • The birth and care of your newborn child;
     
  • The adoption of a child or taking in a child for foster care;
     
  • The care of an immediate family member (spouse, child, or parent) with a serious health condition; or
     
  • A serious health condition that makes you unable to work.

To be eligible to take this time off, you must have worked for your employer for a minimum of 12 months and for at least 1,250 hours during the 12-month period right before the leave. This comes out to an average of at least 24 hours a week in the 12 months before you take the leave.

The 12 weeks you take for your family and medical leave do not have to be consecutive. If it is possible to give your boss advance notice that you will need this time off, you must do so. Try to notify your boss 30 days before the leave or as far in advance as possible.

You should call our office or contact a lawyer in your state to learn more about your rights under the FMLA.

Minimum Wage

You should not receive less than the minimum federal wage per hour.

This is the law in the whole country, but there are a few exceptions. You can contact a lawyer to find out more about the exceptions.

It does not matter if you are paid by piece rate or by quantity. It does not matter if you do not have papers. Your employer always has to pay you the federal minimum wage per hour of work. In some states, the minimum wage may be higher than the federal minimum wage. You should consult with a lawyer in your state to determine the state minimum wage. If the state minimum wage is lower than the federal minimum wage, the company must still follow the federal minimum wage.

Overtime

Many workers in the United States have the right to earn overtime.

Overtime means that you have to get paid time and a half for each hour after 40 hours worked in one week.

The majority of farmworkers do not have the right to overtime, but there are exceptions to this for some agricultural work. If you work planting trees, making pine bales or processing poultry or seafood, you have the right to receive overtime. If you work in a packing shed, you may have the right to receive overtime if you pack produce from other farms. If you work in a cotton gin, overtime will begin when you have worked 48 hours in one week or 10 hours in one day.

Even if you work by piece rate, you may still be entitled to overtime.

Workers involved in other kinds of work may also be entitled to overtime. Consult with our office or another lawyer to understand your rights.

Marly
Marly was living in Florida when Hurricane Katrina hit the Gulf Coast of the U.S. in August 2005. She is from Brazil and heard from friends about all the work that needed to be done to rebuild the Gulf Coast. She went to New Orleans, Louisiana and started working. She had been told that she would be making lots of money and would have many overtime hours. When Marly started working with the company, she found that the reality was different than the promises. She was never paid the extra overtime pay that she was due, even though she sometimes worked as many as 90 hours in one week! She and other workers met with a lawyer and, once she understood her rights, she decided to join a lawsuit against the company for the unpaid overtime. She knew that this was happening to many other immigrant workers and wanted to fight to defend her and other workers' rights. In the end, the company agreed to pay Marly and the other workers the overtime wages they were due plus an additional amount. She feels glad that she fought alongside her fellow workers to get the payment they deserved.

Rubia
Rubia, who is from Guatemala, had a job packing herbs. The herbs that she packed were grown by the same company that owned the packing house. She was not paid overtime, which is legal, because she was packing herbs grown by the company. When Rubia's supervisors began requiring Rubia to pack herbs from different companies, they did not pay Rubia and her coworkers overtime, even though the law required them to pay overtime for packing herbs from outside companies. Rubia and many other workers got together and filed a lawsuit for the overtime pay they deserved. Rubia and three others asked the court for permission to bring this lawsuit as a class action on behalf of themselves and the other workers who were having the same problem (known as "class members"). As a result of this case, the company agreed to a settlement that included over 200 workers as class members.

Your Safety at Work

You have the right to a clean and safe work place. Agriculture employers should provide and maintain a bathroom near the work site. The employer should provide a place where you can wash your hands after using pesticides and to drink clean water in disposable cups. It is very important to drink a lot of fluids during the workday.

Most states require certain employers to have workers' compensation insurance. If you are injured at work, workers' compensation, or "workers' comp," will pay for your medical expenses, a portion of your wages while you are recovering and a final lump sum payment if you are permanently disabled. If an employer has insurance, all employees are eligible for workers' compensation regardless of how long they have worked with that employer and regardless of their immigration status.

If you are injured at work, follow these five steps:

  • Report the accident, injury or illness to your supervisor. It is best to do this immediately. Different states have different time limits for when an injury must be reported.
     
  • Write down the names of all witnesses, including their addresses and telephone numbers if you can get this information.
     
  • See a doctor immediately. In some states you have the right to choose your own doctor, but in other states you must select a doctor from a pre-approved network.
     
  • Take notes for yourself after the accident, injury or illness occurred. Write down exactly what happened, who was present, how your supervisor responded, and what actions you took.
     
  • Contact a local workers' center, your union representative, or a qualified workers' compensation attorney in your area.

Your rights under workers' compensation vary from state to state. You should consult a workers' center, qualified workers' compensation attorney or a union representative to find our more about your rights when you are injured at work.

Ernestina and Silvia
The poultry plant in Morristown, TN, where Ernestina and Silvia worked had a lot of problems. Pay was low and work conditions were hard. Workers weren't allowed to use the bathroom during their shift. The line that moved the chickens through the plant was too fast and there were many accidents. Most of the workers are immigrants from Mexico, and they asked a union to come and advise them about their rights. At the first meeting, Ernestina and Silvia volunteered to join the union organizing committee. Their courage motivated other workers to stand with the union and not to be intimidated. They worked hard to convince workers and other community members to support the union, speaking out at local churches and community events. Their efforts paid off and workers voted by 97% for the union. They also organized a group of workers to file complaints with the state occupational health and safety agency because of the dangerous conditions. The plant was fined thousands of dollars and issued 7 citations for serious health and safety violations. Conditions at the plant have changed so dramatically that the plant even closed in honor of the pro-immigrant rallies held on May 1, 2006.

Pesticides

If you work with pesticides, you should BE CAREFUL. Pesticides are poisons and you must take many precautions when you work with them. The first step is to be trained in how to handle pesticides.

If pesticides are used where you work, your employer may be required to provide training about pesticides. You should wear protective clothing when you work around pesticides. Below are some basic rules to follow to keep you and your family safe and healthy.

When you come home from the fields:

  • Never touch, hug or carry your children until you have bathed, washed and changed your clothing.
     
  • Take off your shoes before going into the house or at least clean them on a rug before entering.
  • We recommend that you bathe or, at the minimum, wash your hands and face.

To keep safe, you should also:

  • Store your work clothing apart from other clothing & also wash it separately.
     
  • Wash fruit & vegetables before eating them.
     
  • Teach your children to wash their hands frequently.
     
  • Cover toys that are outside when pesticides are sprayed & wash them before they are used again.

If you are sprayed with pesticides during your work or ordered to work on freshly sprayed crops, this could be illegal. You should contact a community organization or a lawyer to find out what your rights are in your situation.

If you feel sick or develop a rash or other ailments because of pesticides, you should see a doctor immediately.

Dalíx
Dalíx is originally from Honduras. She worked at a nursery in Florida where the workers were routinely sprayed with water that smelled of chemicals. At times, they were even sprayed directly with pesticides. Many of them began suffering from headaches and nausea. When they complained to their supervisor about these health risks, the supervisor told them that the plants were more important than the workers. Aside from these dangerous working conditions, Dalíx noticed that the men were being paid differently than the women, even though they did the same work. The company created a wage ceiling that they only applied to the women. Also, the men received regular raises and the women did not. After her complaints to supervisors failed to resolve the problems, Dalíx filed a pesticide complaint with the state pesticide regulation agency because of the dangerous chemicals. She also filed a complaint with the Equal Employment Opportunity Commission because the company discriminated against her by violating the Equal Pay Act and for the other unequal treatment she suffered because of her sex. Thanks to Dalíx and the other workers who came forward, the company was investigated. The state agency ordered the company to fix the dangerous pesticide conditions and to pay a fine. Dalíx and a group of co-workers files a lawsuit against the company. They reached a confidential settlement in their case.

Human Trafficking

Human trafficking is a form of modern day slavery. Women, men, and children can be victims of human trafficking.

People experience human trafficking in different ways. Sometimes a trafficker makes false promises to a person about a good job, marriage or better opportunities. Later the trafficker does not follow through on these promises and forces the person to do other work, like prostitution.

Sometimes coyotes or bosses force workers to work to pay off debts and threaten them with violence, the police, or immigration. In some instances, victims of human trafficking are abducted or they are sold by a coyote to another individual.

Signs of human trafficking:

  • You are forced to work to pay off a debt;
     
  • You are forced to work through threats of violence, deportation, or jail;
     
  • You are forced to prostitute yourself or to engage in pornography;
     
  • You are forced to have sex or suffer from physical abuse;
     
  • You are physically confined or have no freedom to change jobs or to move freely;
     
  • You are isolated from other people or are hidden from other community members;
     
  • Your personal identification documents are taken from you;

Some trafficking victims might be able to apply for the T-Visa (Trafficking Visa) through the Victims of Trafficking Prevention Act of 2000. Trafficking victims may qualify for other services and assistance as well.

Rosa
When Rosa first heard about an opportunity to come and work in the US, she didn't want to leave her family in Oaxaca, Mexico. Then she was told that she would earn in a few months in the US what it took her years to earn in Mexico. She began making plans to leave. The coyote charged her a lot of money to get her across the border and told her that she would pay him back when she was earning good money in the US. After walking across the desert, she and others were taken to a house where they were locked inside for several days. Someone was watching over them at all times to make sure they didn't escape. After she was transported to Georgia to work at a tomato farm, the coyote told her that the price had gone up and she owed him more money. Even though she worked very hard, she couldn't pay him back. Most of the money she earned went only to pay her debt. They worked long hours. The coyote and his associates carried weapons and threatened Rosa and the other workers to make them work harder and to keep them there. Rosa and other workers finally escaped from the farm. What Rosa experienced is called human trafficking and it is illegal. She has helped the government investigate these crimes and has obtained work authorization through a T-visa.