Waging The Fight For Workers’ Pay

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Stein Center News caught up with Getman Sweeney and Dunn associate Artemio Guerra ’10 to learn more about how he uses class and collective action to fight for workers’ wages.

Tell us about your current work at Getman Sweeney and Dunn:

Getman Sweeney and Dunn is a law firm that litigates wage and hour claims, strictly on a class and collective Artemio Guerraaction basis. We don’t represent employers or handle other workplace issues. We represent workers across a broad economic spectrum, from top-earning workers challenging their classification as white-collar exempt against Fortune 500 companies, to home care workers, domestic workers, and day laborers. Litigation on behalf of higher-income workers gives us the ability to also work on claims that are less profitable but where there’s a strong public interest in changing the law to benefit low-wage workers.

What do you find rewarding and challenging about working for a small workers’-side law firm?

Getman Sweeney and Dunn is a dynamic place. It’s a private business but with a staff driven by the public interest. I work with a great team. We have done a really good job over the years hiring and holding on to an interesting group of people. Among the legal support staff, we have people with Ph.Ds in economics and math, with advanced degrees in English, in literature, who engage with the workers and attorneys and contribute to the work in a way that’s not as common in other law firms. All six attorneys have a public interest background. The firm’s founder was with Farmworker Legal Services of the Hudson Valley for many years. And I have the fortune to work with two other Fordham alumni, Michael J.D. Sweeney ’96 and Lesley Tse ’06.

My first job out of law school was with Catholic Migration Services (CMS). I came on board to help start an immigrant workers’ rights project. I created the project concept working with CMS on Skadden and Equal Justice Works fellowship applications. I didn’t get the fellowships, but the organization liked the project so much that the office’s legal director hired me out of law school. Don’t be discouraged if you don’t get a fellowship. You might have a chance to still follow your dreams if you can convince people to support your project. I did that project for about two years. We created a volunteer-staffed hotline for workers to report wage theft that fielded about 500 calls a year. I had direct, daily contact with workers. To be right in the trenches, where workers are coming in with very specific issues, I sort of miss that here. At the firm, we have a specific intake process and only pursue cases on a collective or class basis. We can’t handle every individual claim. So I do feel one step removed from the frontlines. But I am able to maintain some of that direct worker contact.

Did you always know that you wanted to work in the area of workers’ rights? If not, what series of experiences and choices led you to your current career and job?

I came to law school after working about a decade as a community organizer and had worked on education, housing, and public health issues. I was always interested in workers’ rights and had worked with legal services organizations and low-wage workers in Brooklyn. I really fell in love with the work that organizations like Brooklyn Legal Aid and MFY Legal Services were doing; that’s what drew me to law school, and that interest propelled me though law school.

Are there any victories you’ve achieved in your work that you are especially proud of?

As a new associate in litigation at a small law firm your work is going to be primarily discovery— defending from offensive discovery and compelling discovery from employers. Employers will often demand that plaintiffs disclose the names of any coworkers that have asked them questions about the lawsuit, arguing that those communications are critical to establishing the plaintiffs’ work hours or determining their job duties. When I was very new here, I had clients who were very uncomfortable naming names and disclosing their conversations with other workers or revealing threads on Facebook discussing the lawsuit; they were very concerned that they would be throwing their coworkers under the bus. I knew from my past work as an organizer that the boss couldn’t ask workers about their communications with other workers about protected concerted activities such as discussions about joining a union or acting together to improve working conditions. The National Labor Relations Act protects workers from surveillance and ensures that workers’ conversations about protected concerted activities are confidential. That is because employer surveillance can deter workers from joining forces and working together to improve their working conditions. We have argued successfully that a wage and hour lawsuit to remedy wage theft is protected concerted activity and that these discovery requests would constitute an unfair labor practice.

We’ve now been successful in getting employers to desist by requiring that employers show that they have a legitimate request beyond attempting to quash the workers’ organizing efforts. I’m proud of that—of being able to allow my organizing background to inform my current work—and now I can let my clients know that they have the right to join forces with their coworkers to improve their working conditions and that if they receive oppressive requests we’ll fight back. Other firms might counsel workers to keep quiet but I don’t discourage workers from talking with each other and working collectively to make things better. Organizing, working collectively, is the only way that workers will be able to make things better at their workplace.

What do you see as the biggest challenge(s) facing workers and their advocates right now?

For about 10 years now, forced arbitration agreements have been a huge challenge. Employers decided that a way to protect themselves from being taken to court on a class or collective action was to ask employees, as a condition of employment, to sign waivers to agree to not pursue disputes in class or collective actions and instead to proceed through arbitration. These forced arbitration agreements and class waivers discourage workers from coming forward to talk with a lawyer because it’s very difficult for a small firm to represent workers individually. It’s just about as much work to represent one or two workers as to represent a class where there are four or five named plaintiffs. And it’s very difficult for a firm to pursue a claim where they’re looking at recovery rates in the few thousands of dollars. The employer might settle the claims of one or two, or even 10 employees, but real change only happens when there’s a class of thousands of employees joining together in a lawsuit that has the potential to bring about a change in company policy or an entire industry.

What our firm and other firms around the country are doing is bringing these cases through arbitration, and then bringing another and another, and at some point the employer decides that resolving all the individual cases through arbitration, especially when the plaintiffs’ firm is winning and recovering fess, doesn’t make sense, and the employers are deciding that they’d rather just consolidate the claims.

How did the Stein Scholars Program prepare you for your career since law school?

Meeting with Andrew Chapin and Hillary Exter and being a part of the community and learning from the experiences of others was so critical to my law school experience. I wound up taking some great classes that helped me learn as a lawyer how to think creatively and outside the box. As an evening student, I didn’t have quite the same level of community, but coming in for the gatherings of the Steins and the events really made me feel part of the Stein and Law School community, and I felt really privileged to be part of that really special group. That the Stein gatherings happened right between the day classes and the evening classes really fit well into my schedule. I don’t think I would have made it through law school without Stein.

What advice do you have for current Stein Scholars?

Using alumni connections wasn’t part of my professional job search, but those connections have been very important now that I’m an attorney. I think that one of the reasons that the firm paid attention to my resume was because of the Fordham connection; one of my firm’s partners is a Fordham alum and one of the founding members of Crowley, and another associate is also a Fordham alum. Don’t hesitate to reach out to people who are doing what you’re interested in, or who have a connection to Fordham.

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