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March|April 2005
Pop Con By David A. Strauss
Lawyers, Unite By Scott Cummings and Ingrid Eagly
Elsewhere
America the Mercurial By Michael Ignatieff
Asking for Trouble By Phillip Carter

Lawyers, Unite

Jennifer Gordon used her law degree to help Long Island immigrants fight for better wages and decent treatment. But she's still not sure lawyers are a force for good.

By Scott Cummings and Ingrid Eagly

THE LABORERS ARRIVED AT THE WORK PLACE PROJECT in Hempstead, Long Island, in the early evening a few years ago, weary from the day's work but drawn in by the smell of Salvadoran bread and the hum of eager talk—about jobs, kids, sports, and Spanish-language soap operas. They had come to begin a nine-week course, conducted in Spanish, on labor rights and immigration history. Jorge Bonilla, who took the course, was a dishwasher who worked 80 hours a week for 30 cents an hour at a Long Island restaurant. He'd been sleeping there on a mound of tablecloths after being evicted from his apartment because he could not pay the rent.

Founded in 1992 by Jennifer Gordon, then a young lawyer armed with a small foundation grant, the Workplace Project had become known among immigrants for its commitment to fighting for the rights of a new subclass of American laborers: the modern-day sweatshop worker. Its resources in that battle came from two arenas that don't often meet: legal advocacy and grass-roots organizing.

As Gordon describes in her important new book, Suburban Sweatshops: The Fight for Immigrant Rights, in the late 1980s and early '90s, nearly 300,000 Latino immigrants came to Long Island from countries like El Salvador, Mexico, Honduras, and Colombia. They hoped to earn more money in a few years in the United States than they could earn in a lifetime at home. What they got instead were sub-minimum wages and often dangerous conditions in jobs as nannies, factory workers, car wash attendants, restaurant employees, and day laborers.

A Harvard Law School graduate, Gordon was self-conscious about being, as she put it, "a white, middle-class lawyer with an elite education, seeking to work in a community of new immigrants of color." But she built the Workplace Project into a nationally recognized organization and in 1999 she won a MacArthur Fellowship, also known as the genius grant. Suburban Sweatshops is a self-reflective insider's account of Gordon's efforts—and of how difficult marrying law and organizing proved to be.

IN ORDINARY "KNOW YOUR RIGHTS" CLASSES, lawyers stand up and lecture to workers about their entitlement to a minimum wage, a safe workplace, and freedom from discrimination. By contrast, the Workplace Project that Bonilla and the others attended was interactive and confrontational. When the class discussed earnings, they talked about the range of wages paid for different jobs and debated the reasons for the disparity—the number of other workers looking for jobs, the presence of unions, a person's ability to speak English, her race, and whether she had legal documentation. When the conversation shifted to the minimum wage, it moved beyond what the law mandated to the question of what was just. The class examined the minimum wage as the product of a political compromise between business and labor rather than a reflection of what workers needed to earn to support their families.

In future classes, workers would analyze the lessons that labor struggles of the past could teach them. Many of the lessons were discouraging. Across the country, the strength of traditional unions has declined over the last quarter century, in part because of the shift from manufacturing to service sector jobs, less than 6 percent of which are unionized. Long Island has been a microcosm of this trend, losing tens of thousands of defense industry jobs in the 1980s, only to see them replaced in the 1990s by a torrent of low-wage service jobs—babysitters, mechanics, janitors, dishwashers, and landscapers—that catered to the lifestyles of Long Island's new high-tech over-class.

With day laborers gathered on street corners, domestic workers tucked away in private households, and janitors employed by subcontractors, it was difficult for unions to find work sites or even stable industries in which to organize. Labor laws that were ill-suited to the world of sweatshop work further hurt traditional unions. One example is the ban on secondary boycotts, which makes it illegal for workers, like janitors, in a subcontracted company to picket the business owner that contracts out for their work. The Workplace Project is one of the now more than 100 new-style immigrant worker centers that have emerged as an alternative to unions, by organizing along lines of ethnic identity and geographic location rather than factory or industry.

Gordon's book recounts some of the Workplace Project's major successes. In 1994, the group helped organize day laborers who looked for work by gathering on street corners in Nassau County and waiting for employers to drive by. Instead of racing to accept a typical offer of $45 for a day's work, the workers collectively agreed to accept no less than $60 a day, and succeeded in raising the baseline wage for day laborers countywide. The Workplace Project also persuaded two large referral agencies for housekeepers and child-care providers to sign a Domestic Worker Bill of Rights, which bound the agencies to place clients in jobs that paid at least minimum wage and to charge them only 10 percent of their first month's wages—the legal limit—rather than twice that amount, as had been the practice. And Gordon's organization was instrumental in passing New York's Unpaid Wages Prohibition Act, a 1997 law that made it a felony to willfully violate wage laws and that dramatically increased civil penalties for employers who fail to pay wages.

These accomplishments underscore the strength of centers like the Workplace Project, which have reduced the worst sweatshop abuses, pushed through significant policy reforms, and strengthened ties between low-wage immigrant workers and labor unions. But Gordon herself is quick to point out the Workplace Project's greatest weakness: scale. In 1998, the year Gordon left the group to write and teach law, only 75 to 100 of the Workplace Project's 500 members were active participants. While the group had modest success in helping some workers recover minimum wage and overtime payments—Gordon reports winning about $215,000 for 166 workers from 1993 to 1995—she concedes that the Workplace Project was not able to more broadly raise wages or improve safety conditions for Long Island's immigrant laborers. Gordon emphasizes other benefits to workers, who learned to run meetings and plan organizing campaigns. But in a world where the problems of sweatshop work are global in scale, this payoff in self-improvement, while no doubt real, is hard to measure.

GIVEN ITS LIMITED ORGANIZING SUCCESSES, it is fair to ask why Gordon and the Workplace Project received so much attention, particularly from major foundations (in addition to the MacArthur Fellowship, Gordon received grants from George Soros's Open Society Institute and the Ford Foundation) and the academic community (before she joined the faculty of Fordham Law School in 2003, Gordon was a featured speaker at numerous conferences). One answer is the Workplace Project's singular attempt to offer legal services as well as to organize the workers. To use Gordon's words, it was a law and organizing center that attacked the problem of sweatshop work by both spearheading organizing campaigns and representing aggrieved workers in court.

As a lawyer, Gordon was quite aware of the tension that this combination created. The organizers she worked with were often skeptical of lawyers, whom they saw as domineering, removed from the community's struggle, and prone to view every issue through a legal lens, often at the expense of building grass-roots movements. "In law, people with a problem come to trained professionals who tell them what they are likely to be entitled to under the state's vision of justice, and then speak for them as the legal process proceeds," Gordon observed. "Little wonder, then, that when law is asked to function in the service of organizing, sparks often fly." The Workplace Project was Gordon's grand experiment in bringing together the combustible mix of law and organizing to advance the rights of sweatshop workers.

Why did Gordon take this risk? It's an interesting question. She could have pursued a more traditional career in legal aid or at a national advocacy group like the ACLU. Her decision to devote herself instead to organizing immigrant workers can be linked to a decline in the standing of public interest law. In 1970, the Yale Law Journal heralded the arrival of the "new public interest lawyers," a small but growing group who eschewed the world of corporate practice for organizations like the NAACP and the newly minted federal legal services program, where they won reforms for African-Americans, the poor, and other disenfranchised groups. They modeled themselves on the lawyers who won school desegregation in Brown v. Board of Education, achieving victories like stronger welfare rights in the 1970 case Goldberg v. Kelly.

But the success of public interest law sowed the seeds of the movement's decline. Victories in court fueled a conservative backlash. In the 1980s and 1990s, major achievements of the public interest movement were rolled back as the courts narrowed civil rights and Congress rescinded the federal entitlement to welfare. Congress also severely restricted the ability of lawyers working in federally funded legal services offices to bring cases that sought broad reform.

Worse, as time wore on, it became clear that many landmark public interest cases did not produce the kind of change advocates had hoped for—a disappointment symbolized most tellingly by the failure of Brown to achieve desegregation in the nation's public schools. As a result, even those sympathetic to the cause of public interest law began to question its usefulness as a vehicle for social change. In 1976, the New York University law professor Derrick Bell published a well-known article criticizing NAACP lawyers for promoting their objective of integration over the goal of improving the quality of blacks' education. Bell captured the sentiment of a growing chorus of academic observers who believed that the efforts of public interest lawyers to engineer change had not only failed but had undermined the goal of social reform. The critics charged public interest lawyers with hubris and political naïveté, accusing them of wasting resources litigating in court that could be better spent organizing in the streets.

Gordon's experience as a law student at Harvard in the early 1990s reflected this disillusionment with old-style public interest law. She writes, "What I was learning about individual legal services and impact litigation seemed inadequate as a response to the complex and entrenched reality of low-wage immigrant work." The Workplace Project was Gordon's attempt to fill the gap.

The legal clinic she designed drew immigrant workers with the promise of free legal help. A traditional clinic is staffed with lawyers who represent as many individual clients as resources allow. At the Workplace Project, a potential client received free services on the condition that she participate in organizing endeavors—by taking a workers' course, for example, or by supporting one of the group's campaigns. This was a radical idea that responded to the left's critique of public interest law but subjected Gordon to considerable heat from activists and academics who worried that she was using the promise of legal help to coerce vulnerable clients into organizing. Gordon correctly notes that rationing legal services is a necessity in a world of scarce resources, and that requiring clients to organize in return for free services is as legitimate as other ways of choosing clients. But the pressure that some workers may have felt to join in campaigns complicates any effort to evaluate how true the Workplace Project was to its mission of worker empowerment.

Once accepted as a client, a worker dealt primarily with organizers and other workers; lawyers were kept in the background. In this way, Gordon explains, the clinic was "shaped to work in tandem with an organizing effort, to serve collective goals even as it vindicates individual rights." In one case, the Workplace Project represented two workers owed several thousand dollars in back wages by their employer, Be-Bop Bagels in Hempstead. When Be-Bop refused to pay the workers because they were undocumented, the group filed a lawsuit and carried out a series of protests in front of the shop, handing out fliers that said, "Q: Are Be-Bop Bagels part of a balanced diet? A: You'll have to ask a nutritionist. But common sense tells us that working 66 and 1/2 hours a week for less than minimum wage is not healthy for anybody." To stop the picketing, the employers quickly settled.

IN TELLING THE STORY OF THE WORKPLACE PROJECT as an immigrant organizing center, Gordon is careful to emphasize that she does not think that law and lawyers are irrelevant to the mission of social reform in the post-civil rights era. She notes, for example, the power of the legal clinic to recruit workers and the solidarity that discussions about legal rights created among immigrant workers who were otherwise divided. Yet even these examples suggest that, to Gordon, law's value is instrumental, a means to the end of worker organizing. Gordon portrays lawyers at their best as bit players in the drama of organizing—teaching a class on labor law that spurs the attendees to action or filing a lawsuit that provides the strategic leverage for a campaign. She depicts lawyers at their worst as one more barrier to worker empowerment that must be surmounted.

After her departure from the Workplace Project in 1998, Gordon notes that the new leaders of the organization decided to eliminate the legal clinic altogether and focus exclusively on organizing. A worker who comes with a claim for unpaid wages is now helped by a team of other workers and organizers who write letters, hand out fliers, and picket the employer's place of business to pressure him to pay. Lawsuits are now filed on behalf of members only as a last resort, and then not by the Workplace Project, but by a pro bono attorney or law school clinic.

Gordon is ambivalent about the structural shift. "This change indeed seems to have better helped workers to develop a belief in their capacity to act on their own behalf and in support of others, the opposite of the lawyer-dependence that a clinic so often generates," she writes. But she suggests that the clinic still plots organizing campaigns in response to the problems of the individual workers who come in the door, rather than chart out more comprehensive strategies. One of Gordon's solutions would be to further reduce the role of the clinic by planning campaigns on the basis of independent research and analysis about industry conditions—a proposal that moves the Workplace Project further in the direction of a labor organizing group and away from its already attenuated connection to law.

Moments like these may leave readers wondering why anyone who cared about fighting social injustice would go to law school rather than train to become a grass-roots organizer. In stressing the threat to collective action posed by individual client representation, Gordon does not discuss other ways that public interest lawyers continue to help advance the collective goals of vulnerable groups—through "impact litigation," for example, which seeks to reform the practices of public institutions and private employers. This is perhaps the main shortcoming of Gordon's book: By focusing so intently on the damage lawyers can do to social movements, it understates their power to do good. Gordon herself personifies this power. It was in her role as a lawyer that she catapulted the Workplace Project to the forefront of the fight against modern sweatshops. Gordon mentions that link only in passing, yet her law degree did more than attract reporters and funders. It gave her the tools to understand the legal environment that gave rise to sweatshops and to identify strategies to reform them.

To Gordon, the central legacy of the Workplace Project is about organizing to defend and promote the rights of immigrant workers. But her story is also about the struggle of lawyers to create space for reform in the recalcitrant world of low-wage work. As the underground economy hurtles forward, that effort will help define the future of public interest law.

Scott Cummings is a professor at the UCLA School of Law. Ingrid Eagly is a deputy federal public defender in Los Angeles.

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